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The  Southern  Pacific  Company  and  their 

Corrupt  Judges  of  the  Supreme  Court 

of  California 


-<:* 


^*' 


BY 


HORACE  W.  PHILBROOK 


SAN  FRANCJSCO,  CAL. 
1899 


The   Destruction   of   Individual    Citizens  by  The 
Southern  Pacific  Company,  by  Means  of  ^ 

Corrupt  Judges  as  their  Agents 


i 


i6 


THE  NEWHAN  &  LEVINSON  CASE 


I. 

THE  CASE  AS    IT   WAS   TAKEN   TO   THE    SUPREME 
COURT  OF  CALIFORNIA. 


The  facts  of  this  case  are  set  forth  clearly,  plainly, 
and  without  the  least  contradiction,  in  the  record  on 
file  in  the  Supreme  Court  of  California,  and  are  as 
follows: 

In  1881  John  Levinson  and  William  J.  Newman 
founded  in  San  Francisco  the  mercantile  firm  of  New- 
man &  Levinson,  which  has  ever  since  been  and  still 
is  doing  a  large  and  very  profitable  business  in  San 
Francisco.  Ever  since  the  firm  was  established,  its 
business,  assets  and  earnings  have  steadily  and 
rapidly  increased. 

In  1887  Benjamin  Newman,  a  brother  of  William 
J.  Newman,  entered  the  firm  as  a  third  co-partner. 
Thereafter  the  members  of  the  firm  were  John  Levin- 
son, William  J.  Newman  and  Benjamin  Newman. 

Mr.  Levinson  was  the  head  of  a  family  residing 
with  him  in  San  Francisco,  and  consisting,  besides 
himself,  of  his  mother,  Mrs.  Fanny  Levinson,  an  aged 
widow,  and  his  two  sisters,  Julia  Levinson  and  Ada 
Levinson. 

Mr.  Levinson's  entire  property  was  invested  in  this 
firm  of  Newman  and  Levinson.  And  the  sole  means 
of  his  support,  and  of  the  support  of  his  family,  was 
the  proceeds  of  his  interest  in  that  firm. 


^7 

Mr.  Levinson  in  the  Hands  of  the  Two  Newmans. 

In  the  latter  part  of  the  3;  ear  1888  Mr.  Levinson 
fell  sick  of  a  mental  disease,  falling  into  the  condition 
shown  in  the  following  testimony  of  his  physician, 
Dr.  C.  F.  Buckley,  a  specialist  of  long  experience  in 
mental  diseases. 

'^He  came  under  my  professional  care  September 
12,  1888,  and  remained   under    my    care    until  he 
left  for  Europe  in  the  latter  part  of  February,  1889. 
He  was  afflicted  during  that  time  with  hypochon- 
dria. This  is  a  disease  of  the  nervous  system,  and  of 
the  brain  more  particularly.     It  is  a  disease  of  the 
will  power.  Hypochondria  borders  on  melancholia, 
and  melancholia  is    insanity.     Mr.  Levinson  was 
one  of  the  worst    cases    of  hypochondria    I    have 
ever  seen.     His  condition  bordered  very  closely  on 
melancholia,  which   is    a    type    of  insanity.     He 
was  afflicted  with  great  despondency  and  a  tendency 
to  suicide.     I  had  him  watched   while    under    my 
care  that  he    might    not    commit    suicide.     When 
he  was  first  under  my  care  he  was  living  on  Turk 
street  with  his  mother  and   two   sisters,  Julia  and 
Ada.  By  my  advice  he  was  removed  from  there  in 
January,  1889,   to   the   Lick   House,   so  as   to    be 
away  from  his  family.     He  was  at  the  Lick  House 
a  month  or  two  months  before  he  left  for  Europe, 
and  was  confined  to  his    room   there.     His    great 
fear  was  that  he  would  become  insane.     I   do  not 
think  it  was  possible  for  him   to   investigate    any- 
thing at  that  time.     He  was  fully   convinced  that 
he  was  about  to  lose   his   mind.     He  had  intelli- 
gence and  could  think  intelligently   on  any    sub- 
ject if  I  would  direct  his  mind  and  lead  him  along, 
but  he  was  practically  destitute  of  will   power.     I 
don't  think  while  under  my  care  he  would  have 
given  attention  to  a  single  page  of  anything  or 
would  have  read  through  a  page  of  anything.     He 


GIFT  OF 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/appealtopeopleOOphilrich 


AN  APPEAL  TO  THE  PEOPLE 


BY 


HORACE  W,  PHILBROOK 


The    Southern    Pacific    Company    and    Their    Corrupt 

Judges  of   the  Supreme  Court  of  California.      The 

Destruction    of    Individual    Citizens    by    The 

Southern  Pacific  Company,  by  Means  of 

Corrupt  Judges  as  their  Agents. 


SAN  FRANCISCO.  CAL. 
1899 


J   •»  »       » 


1\<% 


THIS  BOOK  IS  DEDICATED 

TO   THOSE  WHO   STRUGGLE  AGAINST    INJUSTICE, 
TYRANNY   AND   OPPRESSION  ; 

TO 
"  MEN  WHO  THEIR  DUTIES  KNOW, 
BUT  KNOW  THEIR  RIGHTS,  AND,  KNOWING,  DARE 
MAINTAIN." 


Reduced  to  its  last  analysis,  the   intelligent  and  impartial  administra- 
tion of  justice  is  all  there  is  of  free  government. 

—Henry  Clav  Caldwell. 


484673 


•      •      •  • 


•      •  •   •  * 

•  •     •  •  ,  • 

•«  •    •  ••   • 

•       •  •  •      • 


INTRODUCTION 


In  December,  1894,  and  in  the  first  few  months  of 
1895,  a  small  part  of  the  facts  stated  in  the  following 
pages  was  given  to  the  public  by  the  newspapers  of 
San  Francisco.  And  although  the  part  of  the  facts 
so  given  to  the  public  was  small,  and  although  the  pub- 
lication of  even  that  small  part  was  meager,  yet  they 
called  forth  at  the  time  a  wide-spread  and  deep  indig- 
nation and  a  strong  public  opinion  throughout  Cali- 
fornia and  particularly  in  San  Francisco. 

But,  after  the  Japse  of  only  a  few  months,  a  careful 
and  complete  suppression  of  the  facts  of  this  particular 
case  by  all  the  newspapers  was  established.  By  what 
means  such  suppression  was  established,  the  reader 
may  judge  for  himself,  upon  the  facts  here  laid  before 
him.  Ever  since  it  was  established,  the  public  have 
had  no  other  information  of  the  case  than  what  I  could 
publish  at  my  own  expense.  Such  a  publication  was 
made  by  me  in  1896  in  a  small  circular  entitled  an 
^'Appeal  to  the  People,''  which  was  spread  abroad  in 
San  Francisco  for  about  three  weeks  just  before  the 
general  election  held  in  November,  1896,  offering  my- 
self as  an  independent  candidate  for  Judge  of  the 
Superior  Court.  Even  with  such  inadequate  means  of 
reaching  the  people,  there  was  in  San  Francisco  such 
public  opinion  about  the  case  that  I  was  given  at  that 
election,  according  to  the  official  returns,  12,644  votes. 


k  S  *  *        ", 


Another  such  publication  was  made  by  me  in  March, 
1897,  in  a  memorial  to  the  Legislature  entitled  "The 
Corrupt  Judges  of  the  Supreme  Court  of  the  State  of 
California,"  of  which  some  hundreds  of  copies  were 
distributed.  Another  such  publication  was  made  by 
me  in  1898  in  another  small  circular  entitled  an  "Ap- 
peal to  the  People,"  again  offering  myself  to  the  electors 
of  San  Francisco  as  an  independent  candidate  for  Judge 
of  the  Superior  Court,  with  the  result  stated  below. 

In  none  of  the  publications  above  mentioned  was  I 
able  to  state  the  case  fully — not  in  either  of  the  two 
circulars  above  mentioned,  because  of  the  necessary 
brevity  of  such  a  paper;  and  not  in  the  memorial  sent 
by  me  to  the  Legislature  in  March,  1897,  because  I  had 
not,  up  to  that  time,  collected  the  facts  showing  the 
hand  of  the  organization  known  as  The  Southern  Pa- 
cific Company. 

It  was  not  until  the  publication  of  the  small  circu- 
lar to  the  electors  of  San  Francisco  in  1898,  as  above 
stated,  that  I  was  able  to  state  to  the  public  the  agency 
of  The  Southern  Pacific  Company  in  these  outrages, 
and  even  then,  because  of  the  necessary  brevity  of  the 
paper,  I  could  not  exhibit  the  proof.  But  so  great,  so 
overwhelming  is  the  power  of  that  organization,  so 
much  are  they  held  in  fear  by  multitudes  of  people  in 
California,  and  particularly  in  San  Francisco,  so  ex- 
tensive and  widely  felt  is  the  reach  of  their  evil  power, 
that  many  persons  who  were  most  generously  and 
nobly  assisting  me  in  the  canvass,  have  repeatedly  ex- 
pressed to  me  their  regret  that  I  had  mentioned  the 
agency  of  The  Southern  Pacific  Company,  and  have  re- 
peatedly declared  their  conviction  that  my  having 
done   so  has  only  made  every  avenue  for  redress  the 


more  difficult,  if  not  utterly  impossible.  I  have,  how- 
ever, felt  and  still  feel  the  necessity  as  well  as  the  pro- 
priety of  showing  the  truth  and  the  whole  truth. 

There  are  newspapers  in  San  Francisco  that  profess 
hostility  to  The  Southern  Pacific  Company  and  are  con. 
tinually  making  against  that  organization  vague 
charges  without  sustaining  them  by  any  definite  or 
satisfactory  proof.  Naturally,  the  persons  composing 
the  organization  care  little  for  such  publications,  or,  if 
they  care  at  all,  favor  them  because  they  tend  power- 
fully to  make  the  people  believe  that  everything  that 
can  be  said  against  their  organization  rests  upon  no 
better  basis  than  ill  wall.  The  facts  of  the  particular 
case  shown  in  the  following  pages  are  definitely 
clearly,  and  fully  proved,  and  without  so  much  as  the 
least  contradiction  in  the  evidence.  The  proof  is  in  San 
Francisco  and  accessible  to  every  one.  The  general 
outline  is  known,  and  the  enormity  of  the  case  deeply 
appreciated,  by  many  thousands  of  the  best  people 
in  San  Francisco.  It  is  literally  true  that  if  but  a  sin- 
gle newspaper  of  San  Francisco  had  used  any  of  the 
opportunities,  which  have  been  repeatedly  laid  before 
them  all,  to  publish  the  facts  of  this  particular  case, 
the  full  proof  furnished  by  such  a  case  as  this,  it 
would  be  known  for  an  absolute  certainty,  and  felt  as 
such,  by  all  the  people,  that  the  organization  called  The 
Southern  Pacific  Company,  and  its  allied  organizations, 
are  the  actual  rulers  of  the  country,  and  the  resolved 
and  truly  terrible  enemies  of  the  nation  and  the  people, 
and  that  they  may  with  strict  truth  be  described  in  the 
very  words  of  the  Declaration  of  Independence  as  there 
applied  to  the  king  of  Great  Britain,  viz.,  their  history 
■"is  a  history  of  repeated   injuries  and  usurpations,  all 


ia/i. 


having  in  direct  object  the  establishment  of  an  absolute 
tyranny  over  these  States."  But  when  the  facts  are 
produced,  when  the  proof  is  brought  out,  then  such  is 
the  power  and  cunning  of  The  Southern  Pacific  Com- 
pany and  its  allied  organizations,  that  the  news- 
papers are  either  silent  or  mention  the  case  only  to 
misrepresent  it  in  the  interest  of  The  Southern  Pacific 
Company. 

It  is  also  literally  true  that  if  even  a  single  news- 
paper of  San  Francisco  had  used  any  of  the  opportun- 
ities, which  have  been  repeatedly  laid  before  them  all, 
to  publish  the  facts  of  this  particular  case,  there  would 
have  been  called  out  long  ago  so  great  a  power  of  public 
opinion  as  not  only  to  compel  redress  but  to  make  the 
case  a  monumental  triumph  of  right  and  justice,  and  a 
mighty  landmark  in  the  world  and  particularly 
in  the  State  of  California,  against  human  oppres- 
sion and  wrong.  But  on  the  contrary,  in  all  the  news- 
papers the  case  is  carefully  suppressed,  or,  if  mentioned 
at  all,  it*is  mentioned  only  to  be  misrepresented  for  the 
purpose  of  averting  public  opinion  and  thus  thwarting 
all  means  of  redress. 


COMPARED  WITH  THE  DREYFUS  CASE. 

In  November  last  (1898)  I  received  from  one  of  the 
most  prominent  ministers  of  religion  in  San  Francisco, 
a  letter  concerning  this  particular  case,  in  which 
among  other  things  he  wrote  : 

"  I  deeply  sympathize   with   you   and  hope  you 
will  never  give  up  the  fight.     That  such  outrages 


iJ^'Vl*        can  be   perpetrated  in  the  name  of  justice  in  this 
/  last  decade  of  the   century  in  a  sovereign  State  of 


this  nation,  passes  belief;  and  that  the  cold- 
blooded selfishness  of  the  people  of  the  State  can 
tolerate  the  perpetrators  and  not  compel  a  righting 
of  these  wrongs  is  unthinkable  but  for  the  awful 
fact.  All  sympathize  with  the  unfortunate  and 
martyred  Dreyfus,  but  yours  is  in  my  judgment  a 
kindred  outrage.'^ 

The  particular  case  here,  as  no  one  who  considers  it 
need  be  told,  is  a  far  greater  outrage  than  the  case  of 
Dreyfus.  But  the  words  "  the  cold-blooded  selfishness 
of  the  people  of  the  State,"  in  the  letter  just  quoted, 
are  a  mistake,  a  mistaken  injustice  to  the  people  of  Cal- 
ifornia. There  is  between  the  case  here  and  that  of 
Dreyfus  this  difference  :  The  authors  of  the  Dreyfus 
outrage  had  not  the  power  to  control  the  newspaper 
press ;  in  the  case  here,  the  authors  of  the  outrage  have 
had  that  power,  and  by  exercising  it  have  stood  between 
their  victims  and  the  people  of  the  State. 

At  length  I  am  able  to  publish  the  facts  of  this  par- 
ticular case,  and  to  show  the  fearful  conditions  prevail- 
ing in  a  great  State  of  the  Union  that  the  existence  of 
such  a  case  demonstrates.  It  is  the  cause  of  every  man, 
woman  and  child  now  in  the  State  of  California  or  who 
may  hereafter  come  into  the  State.  It  is  the  cause  of 
the  A'uerican  people  and  of  humanity. 

THE  SOUTHERN  PACIFIC  COMPANY. 

The  organization  known  as  The  Southern  Pacific 
Company  is  a  chief  character  in  the  case.  And  since 
the  case  as  here  published  will  be  read,  not  only  in 
California,  but  elsewhere,  it  will  be  convenient  to  first 
state  generally  what  the  organization  is. 

In  September,  1882,  the  United  Stales  Circuit  Court 


for  the  District  of  California,  at  the  suit  of  The  Southern 
Pacific  Railroad  Company,  declared  void  and  set  aside 
all  that  part  of  the  Constitution  of  California  which 
provided  for  the  taxation  of  railroad  property.  The 
case  is  Railroad  Tax  Cases,  13  Fed.  Rep.  722.  In  giv- 
ing judgment,  the  Court,  speaking  by  Justice  Field, 
said  (at  p.  730)  : 

"  The  questions  thus  presented  for  our  deier- 
mination  are  of  the  greatest  magnitude  and  import- 
ance. *  *  *  Indeed,  their  examination  has 
been  accompanied  with  a  painful  anxiety  to  reach 
a  right  conclusion,  aware  as  the  Court  is  of  the 
opinion  prevailing  throughout  the  community 
that  the  railroad  corporations  of  the  State,  by 
means  of  their  great  wealth  and  the  numbers  in 
their  employ  have  become  so  powerful  as  to  be  dis- 
turbing iniiuences  in  the  administration  of  the 
laws." 

It  is  to  be  noted  that  this  was  said  concerning  the 
control  of  the  judiciary^— of  the  judges — by  "the  railroad 
corporations  of  the  State." 

It  is  to  be  noted  also  that  such  was  the  source  of  that 
declaration  that  it  has  the  force  of  an  admission,  rather 
than  that  of  a  mere  statement.  It  has  also  the  force 
of  an  express  adjudication — it  is  the  language  of  a 
Court  of  the  United  States — a  judgment  embodying  a 
fact  commonly  known. 

That  judgment  was  pronounced  in  1882.  And  since 
that  time  the  railroad  corporations  of  California,  to- 
gether with  many  others,  have  been  organized  into  a 
solid  combination  or  trust,  under  the  name  of  The 
Southern  Pacific  Company,  and  with  such  increase  in 
their  power  as  if  they  had  acted  upon  the  resolve  of  a 
tyrant  of  old,  who,  upon  being  at   the    outset    of  his 


reign  petitioned  by  his  subjects  for  an  abatement  of  the 
rigors  of  his  predecessor,  replied,  "My  little  finger 
shall  be  thicker  than  my  father's  loins." 

The  Southern  Pacific  Company  is  an  organization  of 
corporations,  and  is,  in  form,  a  corporation  which  was 
created  by  a  special  act  of  the  legislature  of  Kentucky 
passed  March  17,  1884.  Instead  of  an  existence  for 
fifty  years  only,  to  which  private  corporations  created 
under  the  laws  of  California  are  limited,  it  is  to  exist 
perpetually.  By  the  terms  of  the  act  creating  it,  it  is 
authorized,  among  other  things,  to  contract  for  and 
acquire,  by  purchase  or  otherwise,  stocks,  bonds  or 
securities  of  any  company,  corporation  or  association; 
to  enter  into  contracts  in  respect  to  the  construction, 
establishment,  acquisition,  owning,  equipment,  leasing, 
maintenance  or  operation  of  any  railroads,  telegraphs, 
or  steamship  lines,  or  any  public  or  private  improve- 
ments, and  to  buy,  hold,  sell  and  deal  in  all  kinds  of 
private  and  public  stocks,  bonds  and  securities;  and  to 
fix  and  increase  its  capital  stock  at  its  pleasure. 

Under  color  of  such  powers.  The  Southern  Pacific 
Company  fixed  its  capital  stock  at  one  hundred  and 
fifty  million  dollars,  and  proceeded  to  issue  its  stock  at 
par  and  take  in  full  payment  of  it  shares  of  the  capi- 
tal stocks  of  other  corporations  (taking  such  stocks  at 
large  rates  of  discount),  and,  having  by  such  means 
obtained  the  control  of  such  other  corporations,  pro- 
ceeded to  cause  its  agents  to  be  elected  as  members  of 
their  respective  boards  of  directors,  and  then,  through 
those  agents,  to  obtain  from  them  leases  of  their  re- 
spective railroads  and  other  property  for  long  terms  of 
years,  and  under  those  leases  to  take  possession  of  such 
railroads  and  property  and  operate  them  as    one   solid 


8 

combination  or  trust,  with  a  combined  and  enormously 
watered  capital  stock.  By  such  methods,  The  Southern 
Pacific  Company  was  made  a  solid  combination  of  cor- 
porations. The  following  are  some  of  the  corporations 
comprised  in  the  organization  prior  to  the  time  the  out- 
rages hereinafter  stated  were  commenced  :  * 

The  Central  Pacific  Railroad  Company,  a  Cali- 
fornia corporation,  with  a  paid-up  capital  stock  of 
upwards  of  sixty-seven  million  dollars  and  outstanding 
bonds  of  upwards  of  sixty  million  dollars,  and  being 
itself  a  consolidation  of  nine  separate  railroad  corpora- 
tions; 

The  Southern  Pacific  Railroad  Company,  a 
California  corporation,  with  a  paid-up  capital  stock  of 
upwards  of  seventy  million  dollars  and  outstanding 
bonds  of  forty-three  million  six  hundred  thousand  dol- 
lars and  upwards,  and  being  itself  a  consolidation  of 
twenty-six  separate  railroad  corporations  ; 

The    California   Pacific  Railroad  Company,  a 

California  Corporation,  with  a  paid-up  capital  stock  of 
twelve  million  dollars  and  outstanding  bonds  of  six 
million  eight  hundred  thousand  dollars  and  upwards, 
and  being  itself  a  consolidation  of  five  separate  rail- 
road corporations  ; 

The  Northern  Railway  Company,  a  California 
corporation,  with  a  paid-up  capital  stock  of  twelve  mil- 
lion eight  hundred  and  ninety-six  thousand  dollars 
and  outstanding  bonds  of  nine  million  nine  hun- 
dred and  seven  thousand  dollars,  and  being  itself  a 
consolidation  of  thirteen  separate  railroad  corporations; 

The   Northern   California   Railway  Company, 

*  Note.— The  form,  constituent  elements  and  size  of  the  organization  as  here 
stated,  may  be  verified  in  Poor' s  Manual  of  Railroad.^,  which  is  published  antiually.  The 
purpose  here  is  to  indicate  generally  the  .'ize,  power  and  character  of  the  organization. 
It  is  therefore  not  intended  to  give  here  a  full  statement  of  all  the  corporations,  roads  and 
steamship  lines  which  are  comprised  in  it.  For  instance.  The  Southern  Pacific  Company 
is  reported  to  ov/n  41,721  shares  of  the  capital  stock  of  the  Mexican  International  Rail- 
road Company,  of  the  par  value  of  $4,172,000,  out  of  the  total  capital  outstanding  amount- 
ing to  $16,975,000.    It  is  reported  also  to  be  continually  growing  in  extent  and  power. 


a  California  corporation,  with  a  paid-up  capital  stock  of 
one  million  two  hundred  and  eighty  thousand  dollars 
and  outstanding  bonds  of  one  million  seventy-four 
thousand  dollars ; 

The  South  Pacific  Coast  Railway  Company,  a 

California  corporation,  with  a  paid-up  capital  stock  of 
six  million  dollars  and  outstanding  bonds  of  five  mil- 
lion five  hundred  thousand  dollars,  and  being  itself  a 
consolidation  of  seven  separate  railroad  corporations  ; 

The  Oregon  and  California  Railroad  Company, 

an  Oregon  corporation,  with  a  paid-up  capital  stock  of 
nineteen  million  dollars  and  outstanding  bonds  of 
eighteen  million  eight  hundred  and  forty-two  thous- 
and dollars : 

The  Southern  Pacific  Railroad  Company 
of  Arizona,  an  Arizona  corporation,  with  a  paid-up 
stock  of  nineteen  million  nine  hundred  and 
ninety-five  thousand  dollars  and  outstanding  bonds  of 
ten  million  dollars  ; 

The  Southern  Pacific  Railroad  Company  of 
New  Mexico,  a  New  Mexico  corporation,  with  a  paid- 
up  capital  stock  of  six  million  eight  hundred  and 
eighty-eight  thousand  dollars  and  outstanding  bonds  of 
four  million  one  hundred  and  eighty   thousand  dollars  ; 

The  Galveston,  Harrisburg  and  San  Antonio 
Railway  Company,  a  Texas  corporation,  with  a  paid- 
up  capital  stock  of  twenty-seven  million  ninety-three 
thousand  dollars  and  upwards  and  outstanding  bonds 
of  twenty-five  million  five  hundred  and  twenty-eight 
thousand  dollars ; 

The  New  York,  Texas  and  Mexican  Railway 
Company,  a  Texas  corporation,  with  a  paid-up  capital 
stock  of  six  hundred  and  thirty  thousand  dollars  and 
outstanding  bonds  of  one  million  five  hundred  and 
eighteen  thousand  dollars; 

The  Texas  and  New  Orleans  Railroad  Company, 


lO 


a  Texas  corporation,  with  a  paid-up  capital  stock  of  five 
million  dollars  and  outstanding  bonds  of  five  million 
ei^ht  hundred  and  fifteen  thousand  dollars  ; 

The  Houston  and  Texas  Central  Railroad 
Company,  a  Texas  corporation,  with  a  paid-up  capital 
stock  of  ten  million  dollars  and  outstanding  bonds  of 
sixteen  million  dollars  and  upwards; 

The  Austin  and  Northwestern  Railroad  Com= 
pany,  a  Texas  corporation,  with  a  paid-up  capital 
stock  of  one  million  sixteen  thousand  dollars  and  out- 
standing bonds  of  one  million  nine  hundred  and 
twenty  thousand  dollars; 

The  Fort  Worth  and  New  Orleans  Railway 
Company,  a  Texas  corporation,  with  a  paid-up  capital 
stock  of  three  hundred  thousand  dollars  and  outstand- 
ing bonds  of  seven  hundred  and  nine  thousand  dollars; 

The  Qulf,  Western  Texas  and  Pacific  Railway 
Company,  a  Texas  corporation,  with  a  paid-up  capital 
stock  of  five  hundred  thousand  dollars; 

The  Direct  Navigation  Company,  a  Texas  cor- 
poration, with  a  paid-up  capital  stock  of  fifty  thousand 
dollars  and  outstanding  bonds  of  one  hundred  and 
fifty  thousand  dollars; 

The  Louisiana  Western  Railroad  Company,  a 

Louisiana  corporation,  with  a  paid-up  capital  stock  of 
three  million  three  hundred  and  sixty  thousand  dollars, 
and  outstanding  bonds  of  two  million  two  hundred 
and  forty  thousand  dollars; 

The  Morgan's  Louisiana  and  Texas  Railroad  and 
Steamship  Company,  a  Louisiana  corporation,  with  a 
paid-up  capital  stock  of  fifteen  million  dollars  and  out- 
standing bonds  of  seven  hundred  and  forty-five  thous- 
and dollars  and  upwards — this  corporation  owning  also 
a  controlling  interest  in  the  capital  stocks  of  six  other 
Louisiana  corporations  and  by  means  of  such  owner- 
ship having  them  consolidated  with  itself,  namely,  the 


II 


Gulf,  Western  Texas  and  Pacific  Railroad  Company,. 
the  Texas  Transportation  Company,  the  Buffalo  Bayou 
Ship  Channel  Company,  the  Houston  and  Texas  Cen- 
tral Railway  Company,  the  Houston  Direct  Navigation 
Company,  and  the  Atchafalaya  Bay  Company; 

The  Iberia  and  Vermillion  Railroad  Company, 

a  Louisiana  corporation,  with  a  paid-up  capital  stock  of 
three  hundred  thousand  dollars  and  outstanding  bonds 
of  upwards  of  six  hundred  and  twenty-nine  thousand 
dollars. 

Prior  to  the  time  the  outrages  hereinafter  stated  were 
commenced,  the  aggregate  capital  of  the  organization ^ 
The  Southern  Pacific  Company,  in  the  combined  capi- 
tal stocks  and  outstanding  bonds  above  mentioned, 
amounted  to  upwards  of  six  hundred  and  thirty-two 
million  dollars  ;  and  it  was  even  then  in  the  possession 
of  and  operating  more  than  seven  thousand  three  hun- 
dred miles  of  railroads,  all  adjacent  to  and  connected 
together,  and  extending  over  the  States  of  Oregon,  Cali- 
fornia and  Nevada ;  over  Utah;  across  the  territories  of 
Arizona  and  New  Mexico;  and  over  the  States  of  Texas 
and  Louisana;  and  also  many  river  steamers  and  ferry 
steamers  and  numerous  ocean  steamships  plying  be- 
tween New  York  and  various  ports  in  Louisiana,  and 
lines  of  steamers  upon  the  Gulf  of  Mexico. 

In  a  sworn  complaint  filed  in  the  United  States  Cir- 
cuit Court  at  San  Francisco  in  January,  1896,  The 
Southern  Pacific  Company  state  the  number  of  persons 
directly  employed  by  them,  in  their  '^  Pacific  system  " 
alone — that  is,  upon  their  roads  in  Oregon,  California^ 
Nevada,  Utah,  Arizona  and  New  Mexico — to  be  71 
general  ofiicers  and  15,064  men  exclusive  of  the  gen- 
eral officers. 

The  annual  income  of  The  Southern  Pacific  Com- 


12 


pany  may  be  seen  from  what  is  shown  from  their  own 
report  for  their  fiscal  year  ending  in  1898.  For  that 
year  their  total  receipts,  as  shown  by  their  published 
report,  were  upwards  of  fifty-five  million  dollars — an 
annual  income  far  greater  than  the  government  of  the 
United  States  possessed  at  any  time  within  the  first 
fifty-seven  years  after  the  constitution  of  the  United 
States  was  adopted.* 

The  principal  place  of  business  of  The  Southern 
Pacific  Company  has  been,  ever  since  the  organization 
was  formed,  at  San  Francisco,  California. 

From  the  time  the  organization  of  The  Southern 
Pacific  Company  was  effected,  the  few  individuals  owning 
together  a  controlling  amount  of  its  capital  stock,  have 
also  owned  controlling  amounts  in  other  powerful  pri- 
vate corporations  having  their  principal  places  of  busi- 
ness in  San  Francisco.  One  of  these  is  the  Market 
Street  Railway  Company,  a  California  corporation 
operating  an  extensive  system  of  street  railroads  in  San 
Francisco,  and  having  a  capital  stock  of  eighteen  mil- 
lion six  hundred  and  seventeen  thousand  dollars  and 
outstanding  bonds  of  eleven  million,  four  hundred  and 
thirty-two  thousand  dollars.  Another  is  the  Pacific 
Mail  Steamship  Company,  a  California  corporation- 
Another  is  the  Oakland  Water  Front  Company,  also  a 
California  corporation.  These  and  several  other  large, 
wealth}^  and  powerful  corporations  located  in  San 
Francisco,  have,  from  the  time  The  Southern  Pacific 
Company  was  formed,  acted  in  close  friendship  and 
alliance  with  it. 

Ever  since  The  Southern  Pacific  Company  was  formed 
the   persons    comprising   it  have  maintained  in  Cali- 


*  Clusky  ;   Political  Text  Book  or  Encyclopedia. 


13 

fornia  a  control  of  the  newspaper  press ;  in  part  by- 
subsidies  paid  by  them  to  newspapers  and  by  treating 
the  proprietors  and  managers  as  their  favored  friends 
or  proteges,  and  in  part  by  publishing  newspapers  of 
their  own,  disguising  their  ownership  so  as  to  deceive, 
hoodwink  and  mislead  the  people.  One  of  the  news- 
papers which  has  thus  been  for  many  years  published 
by  them,  is  The  Record-Union^  a  daily  morning  news- 
paper publi-hed  in  Sacramento.  Another  is  The 
Evening  Post^  a  daily  evening  newspaper  published  in 
San  Francisco. 

Ever  since  The  Southern  Pacific  Company  was 
formed,  the  persons  composing  it  have,  by  means  of 
the  wealth  and  power  of  the  organization  and  the 
numbers  in  its  employ  or  dependent  upon  it,  and 
through  the  agency  of  the  "  boss  "  and  the  "  machine  '^ 
and  the  "  practical  politicians,"  successfully  pursued 
the  policy  of  procuring  their  own  corrupt  agents,  or 
individuals  known  by  them  to  be  pliable  to  their  washes, 
to  be  placed  in  nomination  for  public  offices,  and  par- 
ticularly for  judicial  offices,  in  California,  by  the  re- 
spective principal  political  parties,  and  have  by  the 
same  means  excluded  from  such  nomination  persons 
known  or  believed  by  them  to  be  honest  men  and  incap- 
able of  being  made  their  corrupt  instruments,  and  by 
so  doing  have  for  many  years  overridden  the  Constitu- 
tion and  laws  and  corrupted  their  administration,  and 
have  persistently  pursued  throughout  the  State  the 
policy  of  rewarding  persons  friendly  and  subservient  to 
them,  by  bestowing  upon  such  persons,  by  the  means 
just  indicated,  positions  as  public  officers,  and  by  con- 
ferring upon  them  favors  and  opportunities  of  becoming 
prosperous  and  wealthy,  and  have  as  persistently  pur- 


14 

-sued  the  policy  of  excluding  from  public  office  and  from 
opportunities  to  become  prosperous  or  wealthy,  all 
persons  known  or  supposed  to  be  of  incorruptible  in- 
tegrity. And  during  all  that  time  they  have  pursued 
a  like  policy  concerning  public  offices  and  officers  in 
the  government  of  the  United  States. 

The  purpose  of  The  Southern  Pacific  Company,  and 
of  its  allied  organizations,  is  to  build  up  for  their  pro- 
prietors enormous  fortunes  out  of  what  their  fellow 
men  produce,  allowing  their  fellow  men  to  retain  as  lit- 
tle of  their  own  as  possible,  and  to  so  entrench  them- 
selves that  they  can  never  be  brought  to  justice.  In 
•effecting  that  purpose,  The  Southern  Pacific  Company 
has  always  pursued,  as  did  the  antecedent  organiza- 
tions of  which  it  is  composed,  as  its  settled  and  resolved 
practice,  the  systematic  subordination  of  right  to 
expediency,  the  theory  that  all  means  may  be  justifi- 
ably employed,  however  wrongful,  base  or  cruel,  of 
being  crafty,  merciless,  unsparing,  without  conscience, 
morality,  sentiment,  honor  or  humanity,  and  at  all 
times  ready  and  strong  to  do  evil.  The  railroad  is 
essentially  and  effectively  a  monopoly.  They  are 
therefore  free  from  competition.  It  is  also  a  public 
highway,  and  as  such  indispensable  to  the  people. 
They  therefore  exercise  functions  of  sovereign  ty,  levy- 
ing, collecting  and  appropriating  enormous  taxes  and 
exactions  in  the  form  of  fares  and  freights.  By  means 
of  their  position,  their  enormous  revenue,  the  numbers 
of  persons  in  their  employ,  and  the  numbers  dependent 
directly  or  indirectly  upon  them  for  the  opportunity 
to  earn  a  livelihood,  they  have  at  hand,  in  its  most 
efficient  form,  the  terrible  weapon  of  the  boycott.  The 
haggard  shapes  of  Hunger,  Cruelty,  Force,  Fear,  with 


15 

which  the  whole  universe  of  sentiment  is  haunted  by 
day  and  by  night,  are   so  many  thongs  in  their   whip. 
They  are  held  in  fear  and  in  ever  increasing  fear  by  every 
laborer,  every  merchant,  every  lawyer,  every  physician, 
every  teacher,  every  college  professor,  every  politician, 
every  political  orator,and  by  all  the  numerous  slaves  who 
make  "  policy  "  their  god.     This  is  a  condition  univer- 
sally recognized  as  such  in  San  Francisco.    It  reminds 
one  of  the  assertion  of  Dr.   Le  Bon,  a  contemporary 
French  writer,  that,  through  science,  man  l;ias  learned 
that  to  be  slaves  is  the  natural  condition  of  all  human 
beings,  because  naturally  the  will  of  man  is  weak  and 
so  he  becomes  dispirited,  anarchy  seizing  upon  the  unedu- 
cated and  sullen  indifference  upon  the  more  cultivated. 
This   evil  and   terrible   organization   own   the   courts. 
They  control  the  newspapers.     If  you  stand  in  their 
way,  and   will  not  abandon   duty  and  honor  and  the 
most  fundamental  rights  of  a  human  being  and  be  pli- 
able and  submit  to  their  vile,  degrading  and  wicked  de- 
mands, they  consign  you  and  those  dependent  upon 
you,  wife  and  children  with    you,  to  the  deprivation  of 
the  means  of  living  and  thus  to  penury  and  destitu- 
tion,   with   all  the   consequent   suffering  and  tortures 
which    such  a  condition  necessarily  includes,  and   to 
deaths  of  lingering  torture  and  horror. 


I  show  the  facts  of  a  particular  case,  particular  out- 
rages that  have  been  practiced  and  kept  up  in  the  State 
of  California  for  nearly  five  years. 


i6 
THE  NEWHAN  &  LEVINSON  CASE. 


I. 

THE  CASE  AS    IT   WAS   TAKEN   TO   THE    SUPREME 
COURT  OF  CALIFORNIA. 


The  facts  of  this  case  are  set  forth  clearly,  plainly, 
and  without  the  least  contradiction,  in  the  record  on 
file  in  the  Supreme  Court  of  California,  and  are  as 
follows: 

In  1 88 1  John  Levinson  and  William  J.  Newman 
founded  in  San  Francisco  the  mercantile  firm  of  New- 
man &  Levinson,  which  has  ever  since  been  and  still 
is  doing  a  large  and  very  profitable  business  in  San 
Francisco.  Ever  since  the  firm  was  established,  its 
business,  assets  and  earnings  have  steadily  and 
rapidly  increased. 

In  1887  Benjamin  Newman,  a  brother  of  William 
J.  Newman,  entered  the  firm  as  a  third  co-partner. 
Thereafter  the  members  of  the  firm  were  John  Levin- 
son, William  J.  Newman  and  Benjamin  Newman. 

Mr.  Levinson  was  the  head  of  a  family  residing 
with  him  in  San  Francisco,  and  consisting,  besides 
himself,  of  his  mother,  Mrs.  Fanny  Levinson,  an  aged 
widow,  and  his  two  sisters,  Julia  Levinson  and  Ada 
Levinson. 

Mr.  Levinson's  entire  property  was  invested  in  this 
firm  of  Newman  and  Levinson.  And  the  sole  means 
of  his  support,  and  of  the  support  of  his  family,  was 
the  proceeds  of  his  interest  in  that  firm. 


^7 

Mr.  Levinson  in  the  Hands  of  the  Two  Newmans. 

In  the  latter  part  of  the  jear  1888  Mr.  Levinson 
fell  sick  of  a  mental  disease,  falling  into  the  condition 
shown  in  the  following  testimony  of  his  physician, 
Dr.  C.  F.  Buckley,  a  specialist  of  long  experience  in 
mental  diseases. 

"He  came  under  my  professional  care  September 
12,  1888,  and  remained  under  my  care  until  he 
left  for  Europe  in  the  latter  part  of  February,  1889. 
He  was  afflicted  during  that  time  with  hypochon- 
dria. This  is  a  disease  of  the  nervous  system,  and  of 
the  brain  more  particularly.  It  is  a  disease  of  the 
will  power.  Hypochondria  borders  on  melancholia, 
and  melancholia  is  insanity.  Mr.  Levinson  was 
one  of  the  worst  cases  of  hypochondria  I  have 
ever  seen.  His  condition  bordered  very  closely  on 
melancholia,  which  is  a  type  of  insanity.  He 
was  afflicted  with  great  despondency  and  a  tendency 
to  suicide.  I  had  him  watched  while  under  my 
care  that  he  might  not  commit  suicide.  When 
he  was  first  under  my  care  he  was  living  on  Turk 
street  with  his  mother  and  two  sisters,  Julia  and 
Ada.  By  my  advice  he  was  removed  from  there  in 
Januar}'',  1889,  to  the  Lick  House,  so  as  to  be 
away  from  his  famil}^.  He  was  at  the  Lick  House 
a  month  or  two  months  before  he  left  for  Europe, 
and  was  confined  to  his  room  there.  His  great 
fear  was  that  he  would  become  insane.  I  do  not 
think  it  was  possible  for  him  to  investigate  any- 
thing at  that  time.  He  was  fully  convinced  that 
he  was  about  to  lose  his  mind.  He  had  intelli- 
gence and  could  think  intelligently  on  any  sub- 
ject if  I  would  direct  his  mind  and  lead  him  along, 
but  he  was  practically  destitute  of  will  power.  I 
don't  think  while  under  my  care  he  would  have 
given  attention  to  a  single  page  of  anything  or 
would  have  read  through  a  page  of  an3^thing.     He 


i8 

was  without  power  of  application.  John  Levinson, 
while  under  my  care,  had  very  little  will  power 
left,  though  his  loss  of  will  power  was  not  total. 
He  could  be  easily  led  to  do  anything.  I  don't 
pretend  this  man  was  insane.  I  was  with  Mr. 
Levinson  very  often  during  the  time  he  was  under 
my  care,  as  I  have  testified.  I  must  have  seen  him 
at  least  a  hundred  times.  During  ^11  that  time 
his  will  power  was  so  weak  that  he  would  have 
been  very  likely  to  give  way  on  any  subject  to  any 
one  in  whom  he  had  confidence." 

His  condition  is  also  shown  in  the  testimony  of  his 
sister,  Ada  Levinson,  as  follows  : 

'^I  saw  my  brother,  John  Levinson,  often  while 
he  was  under  the  care  of  Dr.  Buckley  in  1888  and 
1889.  The  condition  of  his  mind  was  very  bad. 
He  used  to  say  that  in  reading  he  saw  the  words, 
but  did  not  understand  what  he  was  reading.  He 
was  always  threatening  suicide  because  he  sup- 
posed he  was  losing  his  mind.  I  visited  him  a 
few  times  while  at  the  Lick  House.  I  noticed 
that  while  there  he  was  very  much  weaker  than 
he  had  been  at  home.  While  he  lived  with  us  at 
home  he  neglected  his  clothing,  and  used  to  be 
unable  to  walk  without  support." 

In  Januar}^,  1889,  while  Mr.  Levinson  was  in  the 
condition  shown  above,  and  away  from  his  family,  and 
confined  to  a  room  in  the  Lick  House,  his  co-partners, 
William  J.  and  Benjamin  Newman,  went  alone  to  Ed- 
mund Tauszky,  a  lawyer,  and  had  him  prepare  for 
them  and  from  their  directions  a  document  couched  in 
very  complicated  and  involved  language,  and  occupy- 
ing eleven  long  and  closely  type-written  pages,  pro- 
fessing to  be  articles  of  partnership  of  the  firm  of 
Newman    &   Levinson.     This    document,    under    the 


19 

guise  of  dividing  part  of  the  profits  as  interest  on  the 
capital  of  the  partners,  very  considerably  reduced  Mr. 
Levinson's  share  of  the  profits,  and  contained  also  a 
long  and  involved  section,  which,  upon  Mr.  Levinson's 
death,  the  two  Newmans  claimed  to  give  them  the  right 
to  take  his  interest  in  the  firm  at  a  valuation  to  be 
fixed  b}^  themselves  alone.  Mr.  Tauszky,  the  lawyer, 
did  not  meet  or  in  anyway  consult  with  Mr.  Levinson, 
and  received  no  direction  from  him  or  in  his  behalf. 
On  completing  the  document  Mr.  Tauszky  delivered  it 
to  the  two  Newmans.  After  Mr.  Levinson's  death  the 
two  Newmans  produced  it  as  the  articles  of  partnership 
of  the  firm  of  Newman  &  Levinson,  with  the  date 
January  24,  1889,  written  in  and  with  the  signature  of 
Mr.  Levinson  and  their  own  signatures  subscribed  to 
it.  But  no  disclosure  has  ever  been  made  of  how  Mr. 
Levinson's  signature  was  obtained. 

Dr.  Buckley  testified,  after  examining  the  document 
called  articles  of  partnership,  last  mentioned,  that,  in 
his  judgment,  Mr.  Levinson  could  have  understood 
it  if  he  had  read  it,  but  that  he  "would  have  been 
unable,  through  lack  of  will  power,  to  examine  or 
understand  a  single  page  of  it." 

In  February,  1889,  Benjamin  Newman  went  to  Mr. 
Tauszky  and  conducted  him  to  Mr.  Levinson's  room 
in  the  Lick  House,  telling  him  that  Mr.  Levinson 
wanted  to  make  a  will.  Thereupon  Mr.  Tauszky  made 
a  will  for  Mr.  Levinson,  appointing  one  Raveley  his 
executor  without  bond,  providing  that  after  Mr.  Levin- 
son's death  his  estate  should  continue  to  hold  and 
carry  on  his  interest  in  the  firm,  appointing  Benjamin 
Newman  a  trustee  to  look  out  for  it,  and  giving  him 
half  its  earnings  as  its  compensation,  providing  that 


20 


the  testator's  mother  should  have  $200  per  month  from 
his  death  out  of  the  earnings  of  his  interest  in  the 
firm,  and  giving  $3,000  to  one  of  the  saleswomen  em- 
ployed by  the  firm,  and  all  the  remainder  of  his  estate 
to  his  mother  and  two  sisters  named  above.  The  will 
bore  date  February  21,  1889,  and  was  signed  by  Mr. 
Le  Vinson. 

Until  after  Mr.  Levinson'^s  death  none  of  his  family 
knew,  nor  was  a  word  dropped,  of  the  existence  of  the 
articles  of  partnership  or  of  the  will. 

Late  in  February,  1889,  Mr.  Levinson  was  taken  to 
Europe  to  seek  relief  from  his  malady.  He  obtained 
no  relief,  and  returned  to  San  Francisco  in  November,. 
1889.  From  that  time  until  his  death  he  was  sick  a 
great  part  of  the  time.  William  J.  Newman  testifies 
that  he  attended  also  to  business  in  the  store,  but  he 
does  not  say  how  much  he  did  so,  or  whether  with  any 
efficiency,    Mr.  Levinson  died  February  25,  1890. 

At  the  time  of  Mr.  Levinson's  death  the  fame  of  the 
partnership  of  Newman  &  Levinson  and  the  good  will 
of  its  business  extended  not  only  throughout  San 
Francisco  and  the  neighboring  cities  and  towns,  but 
through  all  the  states  of  the  Pacific  Coast.  Its  busi- 
ness was  well  established,  and  was  large  and  well  and 
widely  and  favorably  known.  In  June,  1889,  its  mer- 
chandise on  hand  amounted  to  $183,119.29,  and  was 
continually  increasing.  At  the  time  of  Mr,  Levinson's 
death  the  sales  of  goods  by  the  firm  amounted  to 
almost  half  a  million  dollars  per  year,  and  were  con- 
tinually and  rapidly  increasing.  Mr.  Levinson  was 
entitled  to  thirty  per  cent,  of  the  profits.  At  the  time 
of  his  death  his  share  of  the  profits  was  about  $1,000 
per  month,  and  was  continually  increasing. 


21 


Ralph  C.  Harrison  and  the  Two  Newmans. 

During  the  year  1890  Ralph  C.  Harrison  was  an 
attorney  at  law,  practicing  as  such  in  San  Francisco. 
Within  a  few  days  after  Mr.  Levinson's  death  the 
executor  Raveley  employed  Mr.  Harrison  as  the  attor- 
ney and  legal  adviser  on  behalf  of  Mr.  Levinson's 
estate.  At  the  same  time  the  two  Newmans,  with  the 
knowledge  of  the  executor,  but  with  no  know- 
ledge or  suspicion  of  the  fact  on  the  part  of  the 
dead  partner's  family,  also  employed  Mr.  Harrison 
as  their  adviser  in  reference  to  their  deceased  partner's 
estate. 

Mr.  Harrison,  under  his  employment  by  the  exec- 
utor, continued  to  be  the  attorney  and  legal  adviser  on 
behalf  of  Mr.  Levinson's  estate  until  January,  1891, 
when  he  became  a  Justice  of  the  Supreme  Court. 
Under  that  employment  Mr.  Harrison  was.  substan- 
tially the  attorney  and  legal  adviser  on  behalf  of  the 
dead  partner's  family,  Mrs.  Levinson  and  her  daugh- 
ters ;  not  only  is  this  manifestly  true,  but  it  was  ex- 
pressly so  decided  by  the  Supreme  Court  of  California 
on  July  21,  1893,  in  the  case  of  Bergin  vs.  Haight  (99 
Cal.  52),  a  decision  in  which  the  justices  W.  H.  Beatt}^, 
C.  H.  Garoutte,  T.  B.  McFarland  and  J.J.  De  Haven  all 
concurred.  Indeed,  Mr.  Harrison's  entire  compensa- 
tion for  his  services  in  that  employment  was  an  ex- 
pense which  necessarily  fell  on  the  dead  partner's 
family,  and  on  them  alone. 

But,  as  will  appear,  all  the  time  Mr.  Harrison 
was  thus  the  attorney  and  legal  adviser  on  behalf  of 
Mr.  Levinson's  estate,  he  was  also  secretly  advising 
the  two  Newmans  against  that  estate,  and  was, 
by   most    cruel   and  wicked  means,   assisting  the  two 


22 

Newmans  to  cut   off  their   deceased  partner's   family 
from  means  of  redress. 

Mr.  Levinson's  death  left  his  co-partners,  the  two 
Newman  brothers,  in  the  exclusive  possession  of  the 
entire  assets,  business  and  income  of  the  firm.  Their 
partner's  death  thus  gave  them  the  physical  power  to 
withhold  from  his  helpless  family  even  their  daily 
means  of  livelihood. 

Ever  since  Mr.  Levinson's  death  the  two  Newmans, 
his  co-partners,  have  remained  in  possession  of  all  the 
assets  and  business  and  the  entire  income  of  the  firm, 
holding  and  claiming  as  their  own  the  entire  interest 
and  income  of  their  dead  partner.  Between  Mr.  Lev- 
inson's death  and  June  i8,  1892,  the  two  Newmans 
actually  divided  between  themselves  as  profits  of  the 
firm  no  less  than  $105,540.56,  besides  greatly  increas- 
ing the  assets.  Of  the  profits  they  so  divided  at  least 
$31,662.16  belongs  to  their  dead  partner's  estate  and 
to  his  mother  and  sisters.  And  even  without  any  in- 
crease in  the  profits  this  would  give  them  up  to  De- 
cember, 1896,  more  than  $93,000  in  profits  alone,  all 
belonging  to  their  dead  partner's  estate  and  family. 
At  a  low  estimate,  the  estate  of  Mr.  Levinson  now^  in 
the  hands  of  the  two  Newman  brothers  aggregates  at 
least  $200,000.     It  is  probably  more  than  that. 

Within  a  few  days  after  Mr.  Levinson's  death  Wil- 
liam J.  Newman  went  to  his  dead  co-partner's  aged 
mother,  who  by  the  death  of  her  son  had  been  left  the 
head  of  the  family,  and  offered  to  loan  her  from  time  to 
time  such  sums  as  she  might  need  for  family  expenses. 
She  could  not  refuse  the  offer,  and  she  received  from 
him  as  loans  in  the  next  four  months  various  sums 
amounting  to  $540  in  all.     But  at  the  beginning  of 


23 

July,  1890,  Mr.  Newman,  acting  on  the  secret  advice  of 
Ralph  C.  Harrison,  angrily  cut  off  even  the  loan  of 
money  for  any  of  the  dead  partner's  family. 

On  the  8th  day  after  Mr.  Levinson's  death,  the  two 
Newmans,  acting  on  the  secret  advice  of  Ralph  C.  Har- 
rison, prepared  a  letter  to  themselves  from  Mrs.  Leyin- 
son  and  her  daughters,  making  Mrs.  Levinson  and  her 
daughters  say  to  them,  "We  do  not  desire  to  employ 
any  third  person  to  assist  at  the  stock-taking  and  in- 
ventory of  the  assets  of  the  late  firm  of  Newman  & 
Ivcvinson,  now  in  progress."  Having  prepared  this  let- 
ter, the  Newmans  and  the  executor,  Raveley,  took  it  to 
Mrs.  Levinson  and  her  daughters,  and,  though  giving 
no  explanation  of  its  purpose,  induced  them  to  sign  it 
and  hand  it  back  to  the  Newmans. 

Between  Mr.  Levinson's  death  and  March  17,  1890, 
the  two  Newmans  made  out  what  they  called  an  inven- 
tory and  appraisement  of  the  assets  of  the  firm.  They 
did  this  by  themselves  and  their  own  employees  alone. 
The  stores  were  in  twelve  departments,  and  such  inven- 
torying and  appraising  as  was  done  was  done  in  all  the 
departments  at  the  same  time  and  under  the  manage- 
ment of  one  trusted  employee  of  the  two  Newmans  in 
each  department.  At  the  same  time  the  buying  and 
selling  were  being  carried  on  precisely  as  had  been 
done  in  Mr.  Levinson's  lifetime.  Not  a  particle  of  evi- 
dence has  been  produced  as  to  what  goods  were  valued  or 
what  values  were  put  down.  None  of  the  persons  who 
inventoried  any  of  the  goods  or  set  down  any  of  the 
values,  or  actually  saw  or  knew  whether  all  the  goods 
were  inventoried,  or  what  values  were  given,  either  in 
the  establishment  as  a  whole  or  in  any  department — 
no  such  person  has  testified.     The  two  Newmans  pres- 


24 

ently  avowed,  however,  that  no  allowance  w^as  made  for 
the  good  will  of  the  business. 

When  the  Newmans  had  finished  their  inventory 
and  appraisement  they  placed  the  results  on  a  sheet  of 
paper  which  they  called  a  "balance  sheet."  This  "bal- 
ance sheet"  did  not  state  in  any  one  sum  the  value  of 
the  share  of  any  partner,  but  by  looking  through  it 
and  putting  together  items,  it  appeared  from  it,  accord- 
ing to  the  Newmans,  that  the  value  of  Mr.  Levinson's 
interest  in  the  firm  was  $21,389.10. 

Neither  the  inventory  and  appraisement,  nor  any 
part  of  it,  nor  the  "  balance  sheet,"  nor  any  paper  re- 
lating to  the  inventory  and  appraisement,  was  ever 
shown  or  mentioned  to  Mrs.  Levinson  or  to  either  of 
her  daughters  or  to  me. 

On  or  about  March  17,  1890,  the  two  Newmans  and 
the  executor,  Raveley,  told  Mrs.  Levinson  and  her 
daughters  that  the  value  of  Mr.  Levinson's  interest  in 
the  firm  was  $20,790.88,  and  that  that  sum  was  all  that  his 
estate  would  receive.  Mrs.  Levinson  and  her  daugh- 
ters were  greatly  dissatisfied,  as  indeed  they  could 
scarcely  have  failed  to  be  at  such  a  message.  I  w^as 
then  a  lawyer  practicing  my  profession  in  San  Fran- 
cisco, and  as  soon  as  Mrs.  Levinson  and  her  daughters 
were  told  that  Mr.  Levinson's  estate  was  to  receive  but 
$20,790.88  from  his  interest  in  the  firm,  they  employed 
me  to  represent  them  and  act  for  them  specially  in 
relation  to  it.  My  employment  was  to  act  in  conjunc- 
tion with  Ralph  C.  Harrison. 

It  is  a  settled  rule  and  principle  in  law,  and  in  com- 
mon sense  as  well,  that  no  one  makes  any  admission 
whatever  against  himself  by  trying  to  compromise  with 
an  adversary  or  by  anything  he  may  say  or  omit  to  say 


25 

in  the  effort  to  compromise.  This  principle  is  specially 
applicable  to  the  case  of  Mrs.  Levinson  and  her 
daughter,  for  the  Newmans  not  onl}^  had  the  power  to 
withhold,  but  were  in  fact  withholding  from  them  even 
their  daily  means  of  subsistence;  the  family  needed 
money  without  delay,  and  had  to  avoid  saying  or  doing 
anything  that  might  give  the  Newmans  a  pretext  to 
be  hostile.  The  Newmans  and  the  executor,  Raveley, 
and  Ralph  C.  Harrison  all  well  knew  the  helpless  con- 
dition of  Mrs.  Levinson  and  her  daughters  and  their 
present  need  of  money  for  living  expenses.  It  was 
impossible  for  us  to  find,  even  if  we  had  tried,  whether 
the  Newmans  had  made  their  inventory  and  appraise- 
ment honestly  or  not,  and  as  the  family  needed  mone}^ 
without  delay  and  for  their  present  sustenance,  they 
dared  not  raise  any  question  of  the  Newmans'  honesty. 
Therefore,  to  raise  the  valuation  of  the  dead  partner's 
interest  in  the  firm  we  sought  some  ground  that  would 
not  accuse  the  Newmans  of  dishonest  intention.  We 
therefore  asked  whether  there  were  articles  of  partner- 
ship. In  reply  we  were  shown  the  articles  above  men- 
tioned. We  did  not  know  then  how  the  Newmans  had 
obtained  those  articles,  and  we  could  not  inquire  with- 
out questioning  their  honesty  and  giving  them  an 
excuse  to  be  hostile.  We  therefore  looked  at  the  articles 
of  partnership  and  asked  whether  they  had  allowed 
Mr.  Levinson's  estate  anything  for  the  good  will  of  the 
busiuiss  and  trade-mark.  They  answered  that  they 
had  not.  Here,  then,  was  a  ground  and  the  only  ground 
on  which  we  could  demand  a  large  increase  in  the  val- 
uation and  seek  a  compromise  without  questioning  the 
honesty  of  the  Newmans  and  thus  giving  them  a  pre- 
text to  be  hostile.     In  the  course  we  pursued  we  made 


26 

no  admission  that  the  articles  of  partnership  were  in 
fact  the  partnership  articles  of  the  firm,  or  that  the 
inventory  and  appraisement  of  the  Newmans  was  in 
any  respect  correct  or  jnst.  We  simply  tried  to  com- 
promise with  them.  Mrs.  Levinson  and  her  daughters, 
and  I  on  their  behalf,  continually  said  to  Ralph  G. 
Harrison,  to  the  executor  Raveley,  and  to  the  Newmans, 
that  we  should  not  consent  for  the  Newmans  to  take 
Mr.  Levinson's  interest  in  the  firm  for  any  such  sum  as 
$20,790.88.  To  all  of  w^hom  we  continually  said  that 
we  wished  to  settle  or  compromise  without  litigation. 
To  all  of  them  we  urged  that  an  allowance  should  be 
made  for  the  good  will  of  the  business,  urging  this  as  a 
ground  for  asking  the  Newmans  to  concede  to  Mr. 
Levinson's  estate  a  larger  sum  of  money  than  they 
had  named. 

On  March  17  or  18,  1890,  I  called  on  Ralph  C.  Har- 
rison and  told  him  of  my  employment  by  Mrs.  Levin- 
son  and  her  daughters.  At  that  time  I  told  him  also 
that  they  would  not  consent  for  the  Newmans  to  take 
Mr.  Levinson's  interest  in  the  firm  for  any  such  sum 
as  that  named  by  the  Newmans,  also  that  the  articles 
of  partnership  had  been  shown  to  me,  that  I  had  been 
told  that  no  allowance  had  been  made  for  the  good  will 
of  the  business,  that  I  thought  such  an  allowance 
ought  to  be  made  and  I  asked  him  to  urge  that  view. 
Mr.  Harrison  on  his  part  said  little.  He  said  something 
to  the  effect  that  he  did  not  think  Mr.  Levinson's 
estate  was  entitled  to  share  in  the  good  will  of  the 
business,  but  nothing  as  to  what  he  would  do  in  the 
matter.  At  my  argument,  urging  him  to  adopt  the 
view  I  had  expressed,  he  only  smiled  and  was  silent. 
At  my  request,  however,  he  expressly  promised  me  that 


27 

/  should  be  notified  of  any  step  which  should  be  taken  in 
regard  to  the  interest  of  the  estate  in  the  firm  of  New- 
man &  Levinson.  This  promise  he  utterly  disregarded » 
as  will  appear. 

On  March  i8,  1890,  the  executor  Raveley  and  Mr. 
Harrison,  without  opposition,  had  the  will  of  Mr.  Lev- 
inson, mentioned  above,  admitted  to  probate  by  the 
Superior  Court  in  San  Francisco  and  Raveley  appointed 
executor  without  bond. 

On  May  8th  the  executor  Raveley  and  Mr.  Harrison 
procured  from  the  Superior  Court  the  appointment  of 
three  persons  as  appraisers  of  Mr.  Levinson's  estate. 
Two  only  of  the  persons  so  appointed  appraisers  quali- 
fied as  such.  On  May  21,  1890,  the  two  persons  who 
had  thus  qualified  as  appraisers  signed  an  inventory 
and  appraisement  of  Mr.  Levinson's  estate,  saying  that 
the  value  of  Mr.  Levinson's  interest  in  the  firm  of 
Newman  &  Levinson  was  worth  $20,790.88,  but  with- 
out indicating  how  they  had  arrived  at  that  sum.  As 
a  matter  of  fact,  it  was  only  a  sum  named  by  the  two 
Newmans,  and  was  taken  from  them  without  examina- 
tion. On  inquiry  at  Mr.  Harrison's  ofiice  I  found  that 
such  an  inventory  and  appraisement  had  been  signed 
and  saw  it.  I  immediately  protested  against  it  as 
unjust,  and  asked  Mr.  Harrison  that  it  be  made  to  show 
what  was  included  and  valued  as  Mr.  Levinson's  inter- 
est in  the  firm.  Mr.  Harrison  then  promised  me  that 
he  would  consider  my  request  and  notify  me  of  his 
conclusion.     He  never  gave  any  such  notification. 

The    ricKinley  Tariff    Enormously    Increases    the    Value   of 

the  Assets. 

On  May  21,  1890,  the  McKinley  tariff  bill  was  passed 

by    the  House  of  Representatives.       The   passage  of 


28 


this  bill  and  its  then  assumed  enactment  as  a  law,  gave 
an  enormous  increase  to  the  value  of  the  merchandise 
of  the  firm  of  Newman  &  Levinsonthenon  hand.  The 
Newmans,  in  their  inventory  and  appraisement  made 
in  March,  had  stated  the  value  of  the  merchandise  on 
hand  as  $208,754.19.  The  McKinley  tariff  law  in- 
creased the  value  of  all  the  goods  so  on  hand,  of  some 
25  per  cent.,  and  of  others  200  per  cent.,  *'  and  all  the 
way  from  25  per  cent.  up. 'I  The  McKinley  tariff  also 
enormously  increased  the  value  of  the  business  of  the 
firm.  All  this  effect  of  the  passage  of  the  McKinley 
bill  on  the  goods  on  hand  and  on  the  business  of  the 
firm  was  well  known  to  the  two  Newmans,  but  they 
did  not  divulge  even  a  word  of  information  about  it  to 
Mrs.  Levinson  and  her  daughters,  or  to  any  one  on 
their  behalf. 


rir.  Harrison  Secretly  Prescribes  Starvation  as  a  Method 
of  Overpowering  His  Clients,  tlie  Deceased  Partner's 
Family. 

In  June,  1890,  William  J.  Newman  and  the  execu- 
tor Raveley  were  away  on  a  vacation  together  at  the 
Blue  Lakes.     They  returned  early  in  July,  1890. 

It  was  just  after  William  J.  Newman's  return  from 
that  vacation  that  he  cut  off  the  loan  of  money  to 
Mrs.  Levinson.  Mrs.  Levinson  called  upon  him  for  a 
loan,  as  he  had  offered,  and  he  treated  her  angrily,  told 
h-er  that  Mr.  Harrison,  "his  lawyer,"  had  told  him  not 
let  her  have  another  cent  of  money  until  she  stopped 
fighting  or  threatening  to  fight  him  and  his  brother, 
and  that  he  would  not  let  her  have  any  more  money. 
Wm.  J.  Newman  received  that  advice  from  Ralph  C. 
Harrison,  who  at  that  time  was  attorney  for  the  exec- 


29 

utor,    and   for  those  whom  the  executor    represented, 
i.  e.^  Mrs.  Levinson  and  her  daughters. 

It  was  upon  that  treacherous,  cruel  and  cowardly 
advice  of  Ralph  C.  Harrison  that  the  executor  and  the 
two  Newmans  withheld  every  cent  of  the  deceased  part- 
ner's estate  from  Mrs.  Levinson  and  her  two  daughters 
as  long  as  they  possibly  could,  all  the  while  fraudu- 
lently striving,  with  Ralph  C.  Harrison's  help,  to  en- 
tangle the  estate  and  the  deceased  partner's  family  by 
fraudulent  proceedings  in  the  Probate  Court.  By  such 
means  every  cent  of  the  estate  was  fraudulently  and 
wickedly  withheld  from  the  deceased  partner's  family 
until  Nov.  19,  1 89 1 — i.  e.,  for  more  than  twenty  months 
— during  all  which  time,  as  Ralph  C.  Harrison  and  the 
two  Newmans  well  knew,  that  family  had  no  other 
means  of  livelihood  and  were  kept  from  absolute  want 
only  by  what  one  of  the  two  daughters  earned  by  giv- 
ing lessons  in  music.  And  that  siege  of  penury  and 
starving  was  broken  only  by  an  order  obtained  from 
the  Probate  Court,  against  the  open  resistance  of  the 
executor  and  the  two  Newmans,  resistance  to  which 
they  were  instigated  by  Ralph  C.  Harrison. 


rir.  Harrison  and  the  Executor  Trying  to  Obtain  Surrep- 
titiously and  Upon  False  Grounds  an  Order  of  the 
Probate  Court  in  Favor  of  the  Two  Newmans. 

As  a  cover  for  Mr.  Harrison,  and  to  assist  in  carry- 
ing on  the  conspiracy,  J.  B.  Reinstein  and  M.  S.  Eisner 
(Reinstein  &  Eisner)  were  employed  in  July,  1890, 
ostensibly  as  attorneys  for  the  two  Newmans.  On 
July  10,  i890,Reinstein  &  Eisner  first  appeared,  ostensi- 
bly as  attorneys  for  the  Newmans.     On  that  day  the 


30 

two  Newmans,  represented  by  Reinstein  &  Eisner, 
filed  in  the  probate  department  of  the  Superior  Court 
(the  department  having  charge  of  the  administra- 
tion of  Mr.  Levinson's  estate)  a  petition  stating 
that  an  inventory  and  appraisement  of  all  the 
assets  of  the  firm  of  Newman  &  Levinson.  had 
been  made,  entirely  suppressing  the  fact  of  the  omis- 
sion to  allow  for  the  good  will  of  the  business^  and 
stating  that  such  inventory  and  appraisement  showed 
the  value  of  Mr.  Levinson's  interest  in  the  firm  to  be 
$20,790.88  and  no  more  ;  that  they  (the  two  Newmans) 
had,  under  the  articles  of  partership,  a  right  to  take 
Mr.  Levinson's  interest  for  that  sum,  and  to  pay  for  it 
in  twelve  equal  monthly  installments,  beginning  one 
month  after  his  death.  They  asked  for  an  order 
directing  the  executor  Raveley,  to  transfer  Mr.  Levin- 
son's interest  in  the  firm  to  them  on  those  terms.  The 
petition  was  set  for  hearing  on  July  26,  1890.  On  July 
16,  1890,  the  executor  Raveley,  by  Ralph  C.  Harrison 
as  his  attorney,  without  notice  to  the  dead  partner's  fam- 
ily or  to  me,  filed  in  the  Court  the  inventory  and 
appraisement  of  the  two  appraisers  mentioned  above. 
Mr.  Harrison  and  the  executor  appeared  in  Court  on  July 
26,  1890,  when  the  Newmans'  petition  was  called  for 
hearing,  and  filed  an  answer  to  it,  falsely  saying  that 
all  the  statements  of  the  two  Newmans  in  their  petition 
were  true^  and  that  the  executor  was  willing  to  obe^^ 
any  order  the  Court  might  make.  Mr.  Harrison  signed 
this  answer  with  the  words  '' Jarboe,  Harrison  &  Good- 
fellow,  attorneys  for  the  executor."  The  executor  him- 
self did  not  sign.  Though  I  had  not  been  notified  of 
what  was  thus  being  attempted,  I  found  it  out,  and 
addressed    the  Court  on  behalf  of  the  dead  partner's 


31 

family.  M.  S.  Eisner  asked  the  Court,  on  behalf  of  the 
Newmans,  to  refuse  to  hear  any  one  on  behalf  of  Mrs. 
Levinson  and  her  daughters,  saying  that  only  the  exec- 
utor had  a  right  to  be  heard.  Mr.  Harrison  remained 
silent.  It  was  only  after  a  contest  that  I  was  allowed 
to  show  the  Court  that  it  had  no  jurisdiction  to  make 
the  order  so  asked  for  by  the  Newmans^  the  executor 
and  Mr.  Harrison.  The  Court  took  that  view  of  the 
case  and  denied  the  petition. 

Is  it  not  plain  that  this  proceeding  in  the  Probate 
Court  was  an  act  of  fraudulent  confederacy  in  which 
the  confederates  were  the  two  Newmans,  M.  S.  Eisner, 
Ralph  C.  Harrison  and  the  executor  ? 

This  was  on  July  26,  1890.  On  coming  away  from 
the  Court  I  spoke  with  Ralph  C.  Harrison,  the  execu- 
tor, and  Mr.  Eisner,  telling  the  executor  in  the  pres- 
ence of  Mr.  Harrison  and  Mr.  Eisner,  that  Mrs.  Levin- 
son  and  her  daughters  wished  him  to  claim  an  allow- 
ance for  the  value  of  the  good  will  of  the  business;  that 
they  thought  it  ver}^  valuable,  and  that  I  would  as  soon 
as  convenient  apply  to  the  Probate  Court  for  an  order 
requiring  him  to  file  an  inventory  and  appraisement 
including  such  an  allowance  and  that  we  could  thus 
obtain  an  adjudication  upon  the  point. 


The  flaking  of    Mr.  Harrison,   With    Three   Other   Persons, 
Justices  of  the  Supreme  Court. 

On  August  13,  1890,  Ralph  C.  Harrison  obtained 
the  nomination  of  the  Republican  party  of  California 
for  the  office  of  Associate  Justice  of  the  Supreme 
Court.  At  the  same  time  Wm.  H.  Beatty  was  made 
the  candidate  of  the  same  party  for  the  ofi&ce  of  Chief 


32 

Justice,  and  Charles  H.  Garoutte  and  John  J.  De 
Haven  for  Associate  Justices.  The  terms  of  office  for 
which  Mr.  Harrison,  Mr.  Beatty  and  Mr.  Garoutte  were 
such  candidates,  was  twelve  years,  tha*t  of  Mr.  De  Haven 
four  years,  and  all  were  to  take  office  together  on  the 
first  Monday  after  the  first  day  of  January,  1891.  As 
the  Republican  party  has  been  generally  predominent 
in  California,  all  these  four  candidates  were  from  the  time 
of  their  nomination  likely  to  be  elected,  and  they  all  were 
elected  on  Nov.  4,  1890,  and  took  office  together  in  189 1. 

This  nomination  of  Ralph  C.  Harrison  as  a  Justice 
of  the  Supreme  Court  of  California  was  given  to  him 
by  the  organization  of  corporations  called  The  South- 
ern Pacific  Company,  and  E.  S.  Pillsbury,  one  of  their 
agents,  openly  managed  the  nomination  in  the  Con- 
vention. The  other  three  were  either  given  their  nom- 
inations by  the  same  organization  or  with  their 
approval.  All  four  of  them  were  the  candidates  of 
The  Southern  Pacific  Company.  On  August  15,  1890, 
an  editorial  appeared  in  The  Record- Union ^  the  news- 
paper organ  of  The  Southern  Pacific  Company,  prais- 
ing the  nomination  of  all  of  them.  On  August  27, 
1890,  a  long  editorial  appeared  in  the  same  paper, 
praising  every  one  of  them  separately,  urging  their 
election,  and  disparaging  separately  all  the  candidates  of 
the  opposite  party  for  the  same  offices. 

Wm.  H.  Beatty  had  already  filled  the  office  of  Chief 
Justice  for  two  years,  having  been  first  elected  in  1888 
to  fill  the  remainder  of  an  unexpired  term.  At  that 
election  (in  1888)  he  was  also  the  candidate  of  The 
Southern  Pacific  Company.  On  October  24,  1888,  a 
long  editorial  in  support  of  his  candidacy  appeared 
in  their  same  newspaper.  The  Record-Union. 


33 

As  tlie  Supreme  Court  of  California  consists  of 
seven  Justices,  these  four  would  of  themselves  have 
given  the  court  to  The  Southern  Pacific  Company.  But 
there  was,  also,  at  that  very  time  already  in  office  a 
Justice  of  the  Supreme  Court  who  had  already  been 
long  and  widely  and  justly  known  as  being  in  his  offi- 
cial capacity  as  such  Justice  a  corrupt  and  unscrupu- 
lous agent  of  the  same  organization  of  corporations. 
This  was  Thomas  B.  McFarland,  who  in  1886  had  been 
elected  an  Associate  Justice  for  a  term  of  twelve  years. 
On  August  27,  1886,  there  appeared  in  the  same  news- 
paper organ,  The  Record-Union^  an  editorial  praising 
him  and  urging  his  election.  On  October  22,  1886, 
there  appeared  in  the  same  paper  a  long  editorial  in 
his  eulogy,  purporting  to  give  a  review  of  his  life, 
and  urging  his  election.  This  last-mentioned  editor- 
ial was  under  the  caption : 

^'A  REPRESENTATIVE  MAN. 

"  Hon.  T.  B.  McFarland,  Nominee  for  Justice  of  the 
Supreme  Court." 


The  Secret  Transfer  of  the  Deceased  Partner's  Interest  in 
the  Firm  to  the  Two  Newmans. — The  Plot  to  Corrupt 
the  Court. 

On  September  6,  1890,  Ralph  C.  Harrison  and  the 
executor  Raveley,  and  William  J.  Newman  and  Ben- 
jamin Newman  and  M.  S.  Eisner,  held  a  secret  meeting 
in  the  law  office  of  Mr.  Harrison  in  San  Francisco,  and 
there  and  then  the  executor  Raveley,  by  two  writings, 
made  out  in  the  handwriting  of  Ralph  C.  Harrison^  and 
signed  by   Ralph    C.    Harrison   as   the    only    witness^ 


34 

secretly  transferred  John  Levinson's  interest  in  the 
firm  of  Newman  &  Levinson  to  the  two  Newmans,  the 
surviving  partners,  for  the  sum  of  $20,790.88  (a  sum 
which  was  less  by  $598.22  than  the  ver}^  inventory  and 
appraisement  and  "  balance  sheet  "  made  by  the  New- 
mans in  March,  stated  as  its  value,  and  which  was 
probably  less  than  a  seventh  of  its  actual  value), 
payable  in  twelve  equal  monthly  installments  extending 
through  the  year  next  after  Mr.  Levinson's  death.  The 
meeting  was  held  in  secret,  and  everything  done  there 
was  done  in  secret,  and  was  kept  secret  as  long  as 
possible.  Neither  Mrs.  Levinson  nor  either  of  her 
daughters,  nor  any  one  representing  them,  nor  any 
person,  was  informed  of  the  meeting  or  of  anything 
done  at  it.  Not  a  word  about  it  was  dropped.  The 
executor  never  made  to  the  Court  any  report  whatever 
of  the  transaction.  Mr.  Harrison's  express  promise 
that  no  step  should  be  taken  in  regard  to  the  interest 
of  the  estate  in  the  firm  of  Newman  &  Levinson 
without  notice  to  me,  was  used  as  an  additional  cloak 
for  the  secrecy;  for  that  promise  amounted  to  a 
continual  representation,  to  Mrs.  Levinson  and  her 
daughters  and  to  me,  that  no  such  transaction  had 
taken  place. 

It  is  this  secret  transfer  to  the  two  Newmans  that 
the  six  Justices,  Mr.  Harrison's  associates,  have 
upheld. 


The  Scheme  of  the  Confederates. 

Is  it  difiicult  to  understand  what  was  the  scheme  of 
Ralph  C.  Harrison,  the  executor  Raveley,  William  J. 
Newman,  Benjamin  Newman  and  M.  S.  Eisner  in  their 


35 

secret  transaction  of  September  6,  1890,  just  stated? 
Let  us  see.  :  ^ 

If  the  scheme  of  the  two  Newmans  and  the  executor 
and  Ralph  C.  Harrison,  then  well  under  way,  to  starve 
Mrs.  Levinson  and  her  daughters  into  submission, 
should  fail,  and  if  they  should  succeed  in  causing  the 
executor  Raveley  to  be  rerhoved  from  his  position,  and 
obtain  the  appointment  of  some  one  in  his  place  who 
would  be  willing  to  bring  suit  in  the  courts  against  the 
Newmans  to  recover  Mr.  Xevinson's  property  from 
them,  the  Newmans  could  theii  answer  that  they  had 
bought  their  dead  partner^s  interest  in  the  firm  from 
his  executor,  and  could  produce  the  two  wrztmgs  in  the 
handwriting  of  Ralph  C.  Harrison  and  signed  by  Ralph 
C.  Harrison  as  the  witness.  Before  such  a  suit  could 
be  begun  Ralph  C.  Harrison  would  be  one  of  the  seven 
Justices  of  the  Supreme  Court  of  the  State,  and  in- 
stalled as  such  for  a  term  of  twelve  years.  Such  a 
suit  against  the  Newmans  would  necessarily  include, 
as  one  of  its  grounds,  a  charge  that  the  transfer  made 
to  them  by  the  executor  on  September  6,  1890,  was  an 
exceedingly  gross  and  base  fraud.  And,  since  the 
executor  was  acting  on  the  advice  of  Ralph  C.  Harrison, 
and  the  papers  constituting  the -Mil  of  sale  were  in 
Ralph  C.  Harrison's  handwtiting  and  signed  by  him 
alone  as  the  witness,  the  charge  of  fraud  could  not  be 
made  without  involving  as  a  corrupt  party  to  the  fraud 
one  who  would  then  be  one  of-  the  seven  Judges  of  the 
Supreme  Court  of  the  State?  -Wbtild Uot  any  attorney 
mindful  of  his  own  interest  shrink  from  carrying  on 
such  a  suit  ?  And  to  decide  the  suit  against  the  New- 
mans the  Justices  of  the  Supreme  Court  would  neces- 
sarily involve  one  of  their  own  members  in  the  severest 


36 

censure.  Would  not  such  a  fact  be  likely  to  put  an 
enormous  pressure  upon  the  Court  to  decide  in  favor  of 
the  Newmans  ? 

On  September  6,  1890,  the  executor  Raveley  received 
from  the  Newmans  one-half  the  purchase  price  for* 
which  he  then  pretended,  as  above  stated,  to  sell  to 
them  Mr.  Levinson's  partnership  interest  in  the  firm 
of  Newman  &  Levinson.  The  other  half,  namely, 
$10,395.44,  was  paid  to  him  by  the  Newmans  between 
September  6,  1890,  and  February  25,  1891.  But  the 
fact  that  the  executor  had  received  money  from  the  New- 
mans was  kept  secret.  It  was  not  reported  to  the 
Probate  Court  nor  divulged  to  Mrs.  Levinson,  nor  to 
either  of  her  daughters,  nor  to  me. 

While  the  executor,  on  Ralph  C.  Harrison's  advice, 
carefully  concealed  from  Mrs.  Levinson  and  her  daugh- 
ters the  fact  that  he  had  received  money  for  the  estate; 
he  did  (also  on  Ralph  C.  Harrison's  advice)  what 
shows  conclusively  that  the  withholding  of  the  money 
from  Mrs.  Levinson  and  her  daughters  was  only  to 
oppress  them  and  subdue  them  by  starvation.  For,  on 
Sept.  II,  1890,  only  five  days  after  receiving  the  money, 
he  secretly  paid,  out  of  that  identical  money  (and  on 
Ralph  C.  Harrison's  advice),  the  creditor's  claim  of 
Daniel  Meyer.  This  claim  in  truth  iamounted,  with 
interest,  to  $4,095.66;  but  so  wanton  were  the  executor 
and  Mr.  Harrison  in  their  disregard  of  the  interests  of 
the  estate  that  they  actually  gave  $4,222.00  in  payment 
of  it,  an  over-payment  of  $126.33.  It  was  thus  that 
they  treated  the  money  received,  but  for  the  '* beloved 
mother"  of  the  deceased  partner,  who,  according  to  his 
will  was  to  have  $200  per  month  from  his  death — for  her 
there  was  not  a  cent, only  secrecy  and  the  stress  of  penury . 


37 

On  October  ii,  1890,  as  attorney  for  Mrs.  Levinson 
and  her  daughters,  I  filed  in  the  Probate  Court  the 
petition,  asking  that  the  executor  be  directed  to  correct 
the  inventory  and  appraisement  filed  by  him  as  already 
stated  so  as  to  include  the  good  will  of  the  business. 
This  was  the  petition  of  which  I  had  spoken  to  Mr. 
Harrison  and  to  the  executor  and  to  Mr.  Eisner  on 
July  26,  1890,  as  above  stated.  The  purpose  of  it,  as 
Mr.  Harrison  and  the  executor  and  Mr.  Eisner  all  well 
knew,  was  to  obtain  from  the  Probate  Court  a  ruling 
which  could  be  used  as  a  basis  for  arriving  at  some  set- 
tlement with  the  Newmans.  The  petition  contained  a 
copy  of  the  articles  of  partnership  above  mentioned 
and  made  the  claim  that  the  language  of  the  articles 
did  not  exclude  Mr.  Levinson 's  estate  from  a  share  in 
the  good  will  of  the  business.  This  petition  also 
stated  that  at  the  time  the  articles  of  partnership  were 
signed  by  Mr.  Levinson,  and  for  some  time  before  that, 
he  was  sick  of  a  disease  which  affected  his  mind  and 
rendered  him  unable  to  transact  business,  that  he  was 
at  the  time  under  the  care  of  physicians  and  by  their 
advice  was  about  to  depart  for  Europe,  that  he  was 
believed  at  that  time  by  himself,  by  his  physicians  and 
by  the  Newmans  to  be  incurable  of  the  disease  with 
which  he  was  afflicted,  that  at  that  time  Mr.  Levinson 
had  the  utmost  trust  and  confidence  in  the  two  New- 
man brothers,  and  that  they  had  procured  his  signa- 
ture to  the  articles  for  the  purpose  of  advantage  to 
themselves  in  case  of  his  death,  which  was  then 
expected,  and  that  he  was  never  cured  of  hi^^  disease, 
but  continued  to  sink  under  it  until  his  death.  The 
executor,  by  Ralph  C.  Harrison,  his  attorney,  and  the 
two  Newmans,  by  Reinstein  &  Eisner,  as  their  attor- 


38 

neys,  both  filed  demu.rrers  to  this  petition,  and  those  de- 
murrers came  on  for  hearing  and  were  argued  in  the  Pro- 
bate Court  in  the  early  part  of  December,  1890. 

The  two  Newmans,  also,,  on  November  20,  1890,  by 
Reinstein  &  Eisner  as  their  attorneys,  served  on  me 
and  filed  in  the  Probate. Court  an  answer  to  the  peti- 
tion last  mentioned.  No  trial  or  hearing  upon  that 
answer  was  ever  had,  but  it  contained  the  following 
passage: 

''And  deny  that  said  William  J.  Newman  or 
said  Benjamin  Newman  has  not  fully  accounted  to 
said  executor  of  said  estate  for  any  and  all  moneys, 
interests  and  claims,  due  to  said  estate  from  said 
William  J.  Newman  or  said  Benjamin  New- 
man, or  either  of  them,  and  aver  on  the  con- 
trary that  they  have  fully  accounted  for  any 
and  all  claims,  payments  and  sums  due  said 
estate  in  the  manner  set  forth  in  said  memo- 
randum, in  writing,  [the  alleged  partnership  arti- 
cles], and  in  this  behalf  said  William  J.  Newman 
and  said  Benjamin  Newman  aver  that  after  the 
appointment  of  said  S,  W.  Raveley  as  the  executor 
of  the  last  will  and  testament  of  said  John  Lev- 
inson,  deceased,  said  executor  requested  them  (said 
William  J.  Newman  and  Benjamin  Newman)  to 
account  to  him  for  theanterest  of  said  decedent  in 
said  copartnership,  and  said  William  J.  Newman 
and  said  Benjamin  Newman  did  thereupon  account 
to  him  and  exhibit  to  him,  said  executor,  all  the 
books  and  assets  of  every  kind  belonging  to  said 
copartnership,  and  it  appeared  therefrom  that  the 
entire  interest  of  said  decedent  in  the  assets  of  said 
copartnership  amounted  to  the  sum  of  $20,790.80, 
and  thereupon  said  William  J.  Newman  and  said 
Benjamin  Newman  elected  and  decided,  under  and 
in  accordance  with  the  provisions  of  said  memo- 
randum in  writing,  to  purchase  and  pay  for  the 


39 

interest  of  said  decedent  in  said  copartnership, 
and  thereupon  executed  to  said  S.  W.  Raveley,  as 
executor  aforesaid,  their  twelve  certain  promissory 
notes,  bearing  date  the  26th  day  of  February, 
1890,  payable  at  monthly  intervals  thereafter,  each 
for  the  sum  of  $1,752.57^,  said  promissory  notes 
aggregating  the  sum  of  $20,790.80,  in  full  pay- 
ment and  discharge  of  the  interest  of  said  decedent 
in  said  copartnership  business,  as  the  same  had 
been  ascertained  and  determined  by  the  inventory 
and  appraisement  thereof,  and  in  accordance  with 
the  provisions  of  said  memorandum  in  writing.'' 

This  answer  was  not  made  until  two  and  one-half 
months  (seventy-five  da3^s)  after  the  secret  sale  made 
by  the  executor  on  September  6,  1890.  It  did  not  tell 
the  real  transaction,  or  even  its  date.  It  did  not  even 
pretend  to  say  that  the  Newmans  had  paid  any  money 
to  the  executor,  or  that  he  had  received  or  accepted 
anything  from  them  as  a  full  payment  or  a  full  settle- 
ment, or  that  he  had  given  them  any  writing,  or  that 
he  had  sold  or  even  pretended  to  sell  to  them  Mr.  Lev- 
inson's  interest  in  the  partnership.  Besides,  as  already 
stated,  we  had  the  promise  of  Mr.  Harrison  that  no  step 
should  be  taken  in  regard  to  the  interest  of  the  estate 
in  the  firm  of  Newman  &  Levinson  without  notice  to 
me,  and  by  the  fact  that  no  such  notice  was  given  we 
were  assured  that  nothing  had  been  done  by  the  exec- 
utor. 


"Mr.  Justice  Harrison"  Trying  to  Induce  the  Probate  Court 
to  Side  With  the  Two  Newmans. 

When  the  demurrers  of  the  executor  and  the  two 
Newmans  came  on  for  hearing  in  the  Probate  Court 
early    in  December,    1890,  as    above   stated,  Ralph   C. 


40 

Harrison  had  been  elected  Associate  Justice  of  tlie  Su- 
preme Court  of  this  State.  He  was,  however,  under 
his  employment  by  the  executor,  still  the  attorney  for 
Mr.  Levin  son's  estate,  and  was  in  receipt  of  pay,  every 
cent  of  which  was  necessarily  to  fall  as  an  expense 
solely  on  Mrs.  Levinson  and  her  daughters.  But  on 
that  hearing  he,  appearing  as  the  attorney  for  the  ex- 
ecutor, made  a  strenuous  argument  against  Mr.  Levin- 
son's  estate  and  in  favor  of  the  two  Newmans,  stren- 
uously urging  the  Judge  of  the  Probate  Court  to  rule 
that  Mr.  Levinson's  estate  was  entitled  to  no  share  in 
the  good  will  of  the  business.  He  also  tried  to 
strengthen  his  contention  by  filing  a  brief  against  the 
estate  which  he  represented  and  in  favor  of  the  two 
Newmans.  Mr.  Eisner,  appearing  as  an  attorney  for  the 
two  Newmans,  told  the  Court  that  he  rested  his  case 
upon  the  argument  made  by  Mr.  Harrison.  The  only 
argument  made  in  favor  of  Mr.  Levinson' s  estate  was 
made  by  me.  The  matter  so  argued  was  in  December, 
1890,  submitted  to  the  Probate  Court  for  decision.  We 
waited  for  the  decision  till  May  4,  1891,  when  the  Pro- 
bate Court  overruled  the  two  demurrers,  deciding  and 
declaring  that  the  language  of  the  articles  of  partner- 
ship did  not  preclude  Mr.  Levin  son's  estate  from  shar- 
ing in  the  good  will  of  the  business. 

As  already  stated,  Mr.  Harrison  took  office  as  Asso- 
ciate Justice  of  the  Supreme  Court  of  this  State  at  the 
beginning  of  January,  1891,  for  a  term  of  twelve  years. 
He  had  utterly  disregarded  his  promise  made  to  me  in 
March,  1890,  that  I  should  be  notified  of  any  step  to 
be  taken  in  regard  to  the  interest  of  Mr.  Levinson  in 
the  firm  of  Newman  &  Levinson,  except  to  use  it  as  a 
cloak  for  deceit. 


41 

After  Mr.  Harrison  had  taken  office  as  Associate 
Justice  of  the  Supreme  Court,  it  was  understood  that 
John  R.  Jarboe,  who  had  been  Mr.  Harrison's  partner, 
was  attorney  for  the  executor.  And  as  soon  as  the 
decision  of  the  Probate  Court  had  been  given  on  May 
4,  1891,  as  just  stated,  I  called  on  Mr.  Jarboe,  and  said 
to  him  that  since  that  decision  had  been  given  in  favor 
of  the  estate,  I  trusted  that  there  would  be  no  more 
dispute  as  to  the  interest  of  the  estate  in  the  good  will 
of  the  business,  that  Mrs.  Levinson  and  her  daughters 
were  in  need  of  money,  none  of  them  having  received 
anything  from  the  estate,  and  that  I  hoped  that  he 
would  help  bring  about  a  settlement  of  the  matter 
without  delay.  Mr.  Jarboe  replied  that  the  decision  of 
the  Probate  Court  had  not  by  any  means  settled  the 
question,  and  that  the  decision  had  really  not  passed 
upon  the  question.  He  drew  himself  up  and  said  to 
me,  ^'  Mr.  Philbrook,  I  have  always  laid  it  down  that 
upon  the  death  of  a  partner  the  good  will  of  the  busi- 
ness belongs  to  the  surviving  partners."  I  replied 
that  it  was  idle  for  him  to  seek  to  urge  that  view  upon 
me,  because  I  was  familiar  with  the  authorities,  and 
they  were  all  to  the  contrary.  He  then  said,  "Well, 
as  for  the  trade-mark,  it  is  of  no  value.  We'll  give 
that  to  you,  and  give  you  $1,000  for  the  interest  of  the 
estate  in  the  good  will  of  the  business."  I  thereupon 
replied,  expostulating  with  him  for  speaking  in  that 
manner,  telling  him  that  he  spoke  as  if  he  represented 
the  Newmans,  when  he  ought  to  be  taking  up  for  the 
estate;  that  I  had  never  been  able  to  understand  how 
he  and  Mr.  Harrison  had  taken  up  against  the  estate 
on  this  question.  That  I  had  previously  expressed  to 
Mr.  Harrison   my  astonishment  at   his  course  in  the 


42 

matter,  and  that  I  could  not  understand  how  he  could 
speak  as  if  he  were  acting  for  the  Newmans.  He  re- 
plied, "  I  am  not  going  to  do  anything  about  the  mat- 
ter that  looks  unprofessional,  and  I  have  just  told  Ben 
Newman  that  he  must  stop  coming  here.  I  have  told 
him  to  go  and  employ  Dr.  Taylor  as  his  attorney,  and 
Dr.  Taylor  is  now  the  attorney  for  the  Newmans,  the 
surviving  partners.  If  you  intend  to  talk  any  more 
about  the  matter  of  a  settlement  you  had  better  go  to 
Dr.  Taylor." 

On  August  25,  1891,  the  executor,  refusing  to  accept 
the  decision  of  the  Probate  Court  in  favor  of  the  estate, 
filed  in  that  Court  an  answer  to  our  petition  asking  for 
an  increase  in  his  inventory  and  appraisement.  In 
that  answer,  though  he  did  not  divulge  his  secret  sale 
of  Mr.  Le Vinson's  interest  in  the  firm  to  the  New^mans 
on  September  6,  1890,  he  did  state  that  he  had  received 
money  from  them,  his  language  being  as  follows: 

*^  After  my  appointment  as  executor  of  the  last 
will  and  testament  of  said  John  Levinson,  de- 
ceased, I  requested  of  the  surviving  members  of 
said  firm,  viz.,  William  J.  Newman  and  Benjamin 
Newman,  that  they  account  to  me  for  the  interest 
of  the  decedent  in  the  said  partnership,  and  the 
^  said  surviving  members  did  thereupon  account  to 
me  and  exhibit  to  me  the  books  of  the  said  part- 
nership and  the  assets  thereof,  and  it  appeared 
therefrom  that  the  entire  interest  of  the  estate  of 
said  deceased  in  the  assets  of  said  partnership 
amounted  to  the  sum  of  $20,790.80  and  no  more. 

''  Thereafter,  in  accordance  with  the  provisions 
of  said  articles  of  partnership,  the  said  surviving 
partners  executed  to  me,  as  the  executor  of  said 
last  will  and  testament,  their  twelve  certain  prom- 
issory notes,  bearing  date  February  26,  1890,  pay- 


43 

able  at  monthly  intervals  thereafter,  each  for  the 
sum  of  $1,732.57^  (said  promissory  notes  ag^gre- 
gating  the  sum  of  $20,790.80),  for  and  in  consid- 
eration of  the  interest  of  the  said  decedent  in  the 
assets  of  said  partnership,  as  the  same  had  been 
ascertained  and  determined  by  the  aforesaid  in- 
ventory and  appraisement  thereof.  Of  said  notes, 
all  have  been  paid." 

Finding  that  the  executor  had  money  in  his  pos- 
session, Mrs.  Levinson  and  her  daughters,  on  Septem- 
ber 18,  1891,  petitioned  the  Probate  Court,  by  me  as 
their  attorney,  that  part  of  it  be  distributed  to  them. 

While  this  petition  of  Mrs.  Levinson  and  her  daugh- 
ters for  a  part  of  the  money  in  the  executor's  hands 
was  pending,  Mr.  Jarboe  procured  from  me  my  consent 
to  several  continuances  of  the  hearing  of  it,  and  offered 
to  make  no  objection  to  the  petition's  being  granted  if 
I  would  have  the  legatees,  my  clients,  execute  some 
paper  releasing  the  Newmans  from  all  obligation  to  pay 
anything  more  to  the  estate.  I  refused  to  attempt  to 
procure  any  release  from  the  legatees,  and  told  Mr. 
Jarboe  that  that  was  the  very  thing  that  we  had  been 
contesting  about,  as  he  well  knew. 

After  the  executor  had  thus  delayed  the  matter  as 
long  as  he  could,  he  at  last  filed  in  the  Probate  Court 
on  November  2,  1891,  an  answer  to  the  petition  last 
mentioned,  claiming  that  the  distribution  of  the  money 
asked  for  was  contrary  to  Mr.  Levinson's  will,  and 
saying  also: 

"And  further  objects  to  distribution  being  made^ 
upon  the  ground  that  the  estate  of  said  deceased 
is  now  involved  in  expensive  litigation,  which  may 
possibly  be  taken  on  appeal  to  the  Supreme  Court 
of  the  State  of   California,  and  that  it  is  impossible 


44 

to  determine  the  amount  of  expense  will  be  in- 
curred in  and  about  the  said  litigation,  or  in  and 
about  closing  the  estate. 

''And  that  actions  are  pending  in  this  Court  for 
the  purpose  of  causing  the  interest  of  the  said 
John  Levinson,  deceased,  in  said  partnership,  at 
the  time  of  his  death,  to  be  of  other  and  greater 
value  than  said  sum  of  $20,790.88,  which  said  ac- 
tions are  still  undetermined,  and  that  the  said 
executor  protests  against  any  order  of  distribution 
being  made  herein,  unless  the  parties  interested 
in  the  estate  and  in  the  trusts  created  by  the  said 
will  of  said  John  Levinson,  deceased,  shall  execute 
and  file  in  this  Court  a  release  discharging  him, 
the  said  executor,  from  all  liability  to  account  for 
the  interest  of  said  deceased  in  said  partnership, 
as  aforesaid,  to  any  greater  extent  than  the  amount 
of  $20,790.88,  which  he  admits  that  he  had  received 
therefor,  or  for  any  other  or  further  sums  of  money 
which  he  shall  receive  from  said  William  J.  New- 
man and  Benjamin  Newman,  if  any,  if  it  be  ad- 
judged in  the  litigation  now  pending  that  the  inter- 
est of  said  deceased  in  said  firm  of  partnership,  at 
the  time  of  his  death,  was  of  other  or  greater  value 
than  the  said  sum  of  $20,790.88. 

"And  the  said  executor  further  protests  against 
partial  distribution  of  said  estate  being  made,  until 
the  parties  interested  in  the  said  estate  and  in  the 
trusts  created  by  the  said  will  shall  file  in  this 
Court  a  declaration  in  writing,  approving  of  the 
sale  of  so  much  of  the  partnership  interest  of  the 
said  John  Levinson,  deceased,  and  the  estate  of 
said  deceased  as  has  already  been  made  by  this 
executor  and  paid  for  by  said  William  J.  Newman 
and  Benjamin  Newman. 

"Wherefore,  said  executor  prays  that  said  peti- 
tion of  said  petitioners  be  dismissed." 


45 


The  Struggle  of  the  Newmans  and  the  Executor  to  Subdue 
the  Deceased  Partner's  Family  by  Subjecting  Them  to 
the  Stress  of   Penury. 

The  hearing  of  this  petition  for  part  of  the  moneys 
in  the  executor's  hands  came  on  in  the  Probate  Court 
on  November  13,  1891.  Not  a  particle  of  evidence  was 
even  then  produced  of  the  transfer  that  had  been  made 
by  the  executor  to  the  Newmans  on  September  6, 1890. 
But  E.  R.  Taylor  and  M.  S.  Eisner,  the  Newmans' 
attorneys,  appeared  in  the  role  of  attorneys  for  the 
executor,  and  argued  against  the  legatees  being  allowed 
any  money  unless  they  would  first  execute  to  the  New- 
mans a  release  of  any  further  obligation  to  the  estate. 
Mr.  Eisner  then,  in  the  course  of  his  argument,  stated 
that  the  money  had  been  received  by  the  executor 
Raveley  from  the  Newmans  on  a  purchase  by  them  of 
the  interest  of  the  estate  in  the  partnership.  I  ex- 
pressed surprise  at  his  statement,  and  asked  if  any  bill 
of  sale  had  been  made  by  the  executor  Raveley  to  the 
Newmans.  Mr.  Eisner  said  there  had.  I  then  asked 
if  I  might  see  it.  Mr.  Eisner  replied,  "Yes,  if 'you 
will  call  at  my  office  I  will  show  it  to  you."  I  said  to 
the  Court,  "There  is  nothing  in  the  pleadings  said 
about  it,  and  the  order  ought  to  be  made."  The  order 
was  thereupon  made  directing  the  executor  to  pay  Mrs. 
Levinson  $3,000,  and  $3,000  to  each  of  her  two  daugh- 
ters. This  is  all  the  money  that  any  of  them  has  ever 
received  from  Mr.  Levinson's  estate. 

Between  Mr.  Levinson's  death  and  the  time  this  or- 
der was  made,  the  two  Newmans  had  actually  netted 
and  divided  between  themselves  out  of  Mr.  Levinson's 
share  in  the  profits  in  the  firm  a  great  deal  more  money 
than  all  tjiey  had  paid  to  the  executor,  and  every  cent 


46 

that    they    had    so    divided    between   themselves    and 
pocketed  belonged  to  their  dead  partner's  estate. 

And  it  is  a  settled  and  familiar  rule  of  law,  which 
has  been  applied  over  and  over  again  by  the  Supreme 
Court  of  this  State  for  more  than  thirty  3^ears,  that  no 
person  can  recover  money  which  he  has  paid  volunta- 
rily and  with  a  knowledge  of  the  facts.  By  virtue  of 
this  familiar  rule  the  Newmans  could  not  possibly  have 
had  a  right  to  recover  anything  they  had  paid  to  the 
executor,  and  therefore  could  have  had  no  honest 
ground  to  oppose  the  petition  of  Mrs.  Levinson  and  her 
daughters  asking  the  Probate  Court  to  direct  the  exec- 
utor to  pay  over  to  them  a  part  of  the  money  in  his 
hands.  Why,  then,  were  M.  S.  Eisner  and  E.  R.  Tay- 
lor in  the  Probate  Court  trying  to  induce  the  Court  to 
deny  the  petition  ?  Why  was  the  executor  employing 
them,  the  Newmans'  attorneys,  to  oppose  that  pe- 
tition ?  The  only  possible  answer  is  that  the  executor 
and  the  Newmans  were  confederates  and  were  trying 
to  starve  the  dead  partner's  family  into  submission. 

This  order  for  the  executor  to  pay  $9,000  to  Mrs. 
Levinson  and  her  daughters  was  made  in  the  presence 
of  the  attorneys  for  the  Newmans  and  with  the  distinct 
and  emphatic  refusal  of  Mrs.  Levinson  and  her  daugh- 
ters to  release  the  Newmans  from  any  claim  whatever. 

What  was  the  purpose  of  the  Newmans  in  opposing, 
in  the  name  of  the  executor,  the  making  of  that  order? 
Solely  to  keep  up  the  siege  of  starvation  upon  the  fam- 
ily of  their  deceased  partner. 

How  was  it  that  the  executor  allowed  the  Newmans 
to  thus  use  his  office  ?  He  did  not  legitimately  repre- 
sent the  Newmans.  Legitimately,  he  represented  only 
Mrs.  Levinson  and  her  daughters.     They  were  using 


47 

his  name  and  his  office,  because  he  was  their  confeder- 
ate in  the  wickedness  in  w^hich  they  were  engaged 
against  their  dead  partner's  family. 


The  Refusal   to    Disclose   the   Secret    Transfer   to  the   Two 

Newmans. 

Immediately  after  that  order  had  been  made  I  called 
on  Mr.  Eisner  at  his  office  and  asked  to  be  shown  the 
bill  of  sale  which  he  had  spoken  of  in  the  Probate 
Court  on  November  13,  1891,  as  just  stated.  He  pro- 
fessed not  to  have  it,  saying  that  it  had  been  mislaid 
or  was  somewhere  else.  I  called  on  him  again  with  the 
same  result. 

On  Nov.  19,  1891,  Mrs.  Levinson  and  her  daughters 
and  I  had  an  appointment  with  Mr.  Raveley  the  exec- 
utor, and  Mr.  Jarboe,  his  attorney,  to  meet  at  Mr.  Jar- 
boe's  office  at  2  o'clock  and  receive  the  payment  of  the 
$9,000  decreed  to  these  legatees  on  the  partial  distri- 
bution. We  met  in  Mr.  Jarboe's  office  accordingly. 
There  were  present,  John  R.  Jarboe,  Mr.  Raveley  the 
executor,  Mrs.  Fanny  Levinson,  her  daughters  Julia 
and  Ada,  and  myself.  After  the  money  had  been  paid 
over  and  the  respective  receipts  had  been  signed  by  the 
legatees  and  by  myself  as  witness,  I  turned  to  the  ex- 
ecutor and  said  to  him  that  on  the  previous  Friday,  in 
the  Probate  Court,  when  the  petition  for  a  partial  dis- 
tribution was  being  heard,  Mr.  Eisner  had  stated  that 
he  (the  executor)  had  made  to  the  two  Newmans  a  bill 
of  sale  or  some  writing  transferring  to  them  the  inter- 
est of  Mr.  Levinson's  estate  in  the  partnership — that 
Mr.  Eisner  had  told  me  that  he  would  let  me  see  that 
paper — that  I  had  called  upon  him  to  obtain   an  in- 


48 

spection  of  it,  and  had  been  put  off.  I  then  asked  him 
in  the  presence  of  the  persons  just  named,  whether  he 
had  made  to  the  Newmans  any  writing,  and  if  so,  to  be 
informed  what  it  was.  He  immediately  replied  that 
he  had  not  made  to  the  Newmans  any  writing  what- 
ever. But  as  he  was  saying  this  Mr.  Jarboe  J^prang  up, 
and  with  much  emphasis  told  him  not  to  tell  us  a 
word,  saying,  "Don't  answer  his  question;  don't  tell 
him  anything."  Mr.  Jarboe  then  turned  to  me  and  said 
that  I  had  come  with  the  legatees  to  receive  payment  of 
money,  and  that  I  had  no  right  to  bring  up  anything 
else  than  that  payment  of  money.  I  replied  that  it  was 
a  very  serious  matter  that  we  had  lately  been  informed 
about— ^that  we  understood  that  the  executor  was 
bound  to  give  to  the  persons  interested  in  the  estate 
information  at  any  time  as  to  what  he  was  doing  about 
the  estate,  and  that  it  was  proper  for  me  to  ask  him  the 
question.  I  then  turned  to  the  executor  and  again 
asked  him  the  same  question,  saying,  '^Have  you  given 
the  Newmans  any  paper  writing?"  He  again  said, 
"No,  no."  And  as  he  did  so,  Mr.  Jarboe  again  sprang 
up  and  said  to  him,  with  much  excitement,  'What  are 
you  saying?  You  gave  the  Newmans  two  writings." 
I  then  asked  the  executor  if  he  could  show  me  a  copy 
of  these  writings — that  the  matter  was  important,  and 
no  doubt  a  copy  had  been  kept.  Mr.  Jarboe  said  he 
did  not  know  that  any  copy  existed.  I  turned  to  the 
executor  and  asked  him  what  he  intended  to  do  there- 
after in  regard  to  claiming  from  the  Newmans  an  in- 
terest in  the  good  will  of  the  business.  He  replied 
that  he  would  do  whatever  the  Court  ordered.  I  then 
told  him  that  the  Probate  Court  had  already  made  a 
decision   that   the  estate  had  an  interest  in  the  good 


49 

will  of  the  business.  He  said,  ''No;  that  was  not  the 
dicision."  I  then  asked  him  what  he  intended  to  do 
about  the  matter  of  the  good  will.  He  said  that  he 
was  in  the  hands  of  his  attorney,  Mr.  Jarboe,  and  that 
he  would  do  whatever  his  attorney  told  him  to  do;  that 
throughout  the  administration  of  the  estate  he  had  done 
just  what  his  attorney  had  told  him  to  do.  Mr.  Jarboe 
then  stated  that  he  was  to  be  very  busy  that  afternoon; 
that  we  had  come  there  to  get  money  only,  and  asked 
me  not  to  urge  the  matter  any  further;  and  thereupon 
we  came  away. 

A  few  days  afterward,  I  again  called  upon  the  exec- 
utor and  again  asked  him  to  tell  me  what  transaction 
he  had  had  with  the  Newmans,  but  he  would  tell  me 
nothing. 

The  Executor  Resigns  Under  Charges  of  Confederacy  With 
the  Two  Newmans. 

Thereupon  on  November  24,  1891,  Mrs.  Levinson 
and  her  daughters,  by  me  as  their  attorney,  filed  in 
the  Probate  Court  a  petition  charging  that  the  exec- 
utor had  been  and  was  in  a  conspiracy  with  the  two 
Newmans  to  defraud  Mr.  Levinson's  estate,  and  that  he 
had  been  and  still  was  the  fraudulent  tool  of  the  two 
Newmans,  and  asked  for  his  removal  on  that  ground. 
On  the  filing  of  that  petition  the  Probate  Court  on 
issuing  its  citation  to  the  executor  to  show  cause  why 
he  should  not  be  removed,  ordered  him  to  give  a  bond. 
And  it  was  the  two  Newmans  that  obtained  for  the  ex- 
ecutor the  bond  so  required. 

Shortly  after  the  filing  of  the  petition  last  mentioned, 
the  executor  sent  to  Mrs.  Levinson  and  her  daughters 
an  offer  to  resign  if  they  would  -allow   him  to  do  so.     I 


50 

thereupon  again  demanded  to  be  shown  what  papers 
he  had  given  to  the  Newmans.  He  then  sent  me  a 
copy  of  each  of  the  two  writings  made  by  him  on  Sep- 
tember 6,  1890,  as  above  stated,  professing  to  transfer 
Mr.  Levinson's  interest  in  the  firm  to  the  New^mans. 
This  was  subsequent  to  November  24,  1891,  and  was 
the  first  time  Mrs.  Levinson  or  either  of  her  daughters 
or  I  had  been  allowed  to  know  what  the  transaction 
was  or  its  date.  Mrs.  Levinson  and  her  daughters 
then  allowed  the  executor  to  resign. 

Of  the  moneys  the  executor  Raveley  had  received 
from  the  Newmans  he  had  retained  as  his  commission 
or  had  paid  away  as  debts  and  expenses,  including 
payments  to  his  attorneys,  the  sum  of  $6,441.98, 
besides  th^  $9,000  he  had  paid  to  Mrs.  Levinson 
and  her  daughters  as  above  stated.  To  the  adminis- 
trator appointed  in  his  place  in  January,  1892,  he 
turned  over  the  sum  of  $6,254.97.* 


The  Suit  for  an  Accounting. 

The  administrator  brought  suit  against  the  tw^o  New- 
mans for  an  accounting,  and  to  have  the  entire  partner- 
ship affairs  of  the  firm  of  Newman  &  Levinson  settled 
and  the  proceeds  divided  between  the  estate  of  the 
deceased  partner  and  the  surviving  partners  according 
to  their  respective  interests.  This  suit  is  the  case 
mentioned  on  page  16  above.  The  complaint  alleged 
that  the  firm  had  no  articles  of  partnership. 

The  Newmans  filed  an  answer  to  the  complaint  by 
Reinstein   &  Eisner  and  E.  R.  Taylor  as  their  attor- 

*NoTE.— The  payment  of  the  legacy  of  $3,000  mentioned  on  p.  20  above  and  the  costs  of 
the  accounting  suit  in  the  Superior  Court  alone  absorbed  $4,896.40  of  this  sum.  The  costs 
of  the  appeals  to  the  Supreme  Court  have  absorbed  more  than  all  the  rest. 


51 

neys.  In  the  answer  they  alleged  that  the  articles  of 
partnership  mentioned  above  had  been  executed  by 
Mr.  Levinson  and  William  J.  Newman  and  Benjamin 
Newman.  The  answer  also  alleged,  as  a  defense,  the 
transfer  made  by  the  executor  on  September  6,  1890, 
as  above  stated,  and  contained  copies  of  the  two  papers 
then  signed  and  delivered  by  the  executor  to  the  New- 
mans, each  paper  having  at  the  end  the  name  of 
Ralph  C.  Harrison  as  the  only  witness.  Mr.  Harrison 
was  now  one  of  the  Associate  Justices  of  the  Supreme 
Court.  But  the  answer  admitted  that  the  sum  paid  by 
the  Newmans  to  the  executor  had  been  less  by  $593.18 
than  what  the  inventory  and  appraisement  made  by 
them  had  shown  was  proper,  and  on  that  ground 
admitted  that  the  plaintiff  was  entitled  to  recover 
$593.18  and  also  $69.22  as  interest  on  that  sum,  i.  e.^ 
$662.40  in  all. 

Upon  that  complaint  and  that  answer  the  case  was 
tried  in  the  Superior  Court  of  San  Francisco.  On  the 
trial  all  the  facts  of  the  case  stated  above  (except  only 
what  is  said  of  The  Southern  Pacific  Company)  were 
proved  clearly,  plainly,  fully  and  without  contradiction. 
The  attornevs  who  conducted  the  trial  on  the  side  of 
the  two  Newmans  were  E.  R.  Taylor  and  J.  B.  Rein- 
stein.  They  introduced  as  evidence  the  originals  of 
the  two  writings  signed  and  delivered  by  the  executor 
to  the  two  Newmans  on  September  6,  1890,  as  above 
stated  and  raised  and  kept  up  profusely  the  cry,  "  It  is 
in  Judge  Harrison's  handwriting,"  with  such  effect 
that  the  Judge  of  the  Superior  Court  immediately — 
without  delaying  a  moment — ordered  a  judgment  that 
Mr.  Levinson's  estate  should  not  only  have  no  account- 
ing, but   should    recover  nothing   whatever   from  the 


52 

Newmans — not  even  so  much  as  a  cent  of  the  $66240 
which  they  admitted  to  be  still  due — and  should  pay 
the  costs  of  a  suit.  The  judgment  was  made  and 
entered  in  January,  1893. 

In  the  Superior  Court  the  plaintiff  moved  that  the 
decision  be  set  aside  and  for  a  new  trial.  Before  that 
motion  could  be  brought  to  a  hearing  the  evidence  on 
the  trial  had  to  be  written  out,  certified  by  the  trial 
Judge  and  filed.  The  motion  was  at  last  heard  in  the 
Superior  Court  on  April  27,  1894,  by  the  same  Judge 
who  had  ordered  the  judgment  last  mentioned,  and 
was  immediately  denied. 


*'  The   Opinion    of   the  Trial    Judge,  Hon.    W.    T.    Wallace, 
Which  Opinion  is  set  Forth  in  the  Record.*'* 

I  regret  the  necessity  of  naming  the  Superior  Court 
Judge,  and  of  him  and  his  decision  as  little  as  possible 
will  here  be  said  :  partly  because  the  law,  by  provid- 
ing for  an  appeal,  gave  a  remedy  for  his  misconduct, 
and  partly  because  his  term  of  ofiice  has  expired  and 
he  has  again  offered  himself  as  a  candidate  and  has 
been  rejected  by  the  votes  of  the  people  and  beyond  all 
reasonable  doubt  will  never  again  occupy  judicial 
office.  But  in  the  editorials  in  The  Record-Union 
which  it  is  necessary  to  quote  and  in  the  final  decision 
of  the  case  for  the  two  Newmans  he  is  named  and  his 
decision  is  referred  to  for  the  purpose  of  bolstering  up 
the  disbarment  judgment  and  that  final  decision.  It 
is  therefore  needful  to  name  him  here  and  to  speak  of 
his  decision.  ^ 

The  Judge  was  Wm.  T.  Wallace  ;  and  he  previously 


See  the  Appendix,  p.  54,  and  also  pp.  18,  23  and  36. 


53 

was  a  law  partner  of  E.  S.  Pillsbury,  the  agent  of 
The  Southern  Pacific  Company,  who  in  the  Republican 
State  Convention  in  1890  managed  the  nomination  of 
Ralph  C.  Harrison  as  Associate  Justice  of  the 
Supreme  Court. 

The  judicial  reputation  and  the  judicial  record  of 
Judge  Wallace  are  far  from  spotless.  In  1890  he 
sought  from  the  Democratic  State  Convention  the 
nomination  for  Chief  Justice  of  the  Supreme  Court, 
and  his  failure  to  obtain  the  nomination  was  due  to  the 
fact  that  a  weekly  newspaper  of  San  Francisco  pub- 
lished him  in  the  convention  as  a  false  and  corrupt 
Judge.  He  did  not  even  attempt  to  call  his  traducer 
to  account.  Among  the  lawyers  of  San  Francisco  he 
has  the  reputation  of  being  able  and  dishonest.  But, 
as  Judge  of  the  Superior  Court,  he  on  every  oppor- 
tunity played  to  the  galler}^,  and  in  particular  at  every 
■opportunity  he  posed  as  a  would-be  enemy  of  the  cor- 
rupt and  unpopular  practices  of  The  Southern  Pacific 
Company,  and  he  was  diligently  advertised  as  such  by 
a  prominent  daily  newspaper  of  San  Francisco.  By 
such  means  he  obtained  numerous  admirers  among  the 
best  people  of  the  State,  and  particularly  in  San 
Francisco.  It  was  because  of  that  popularity,  and  for 
the  purpose  of  using  it  to  bolster  the  outrages  herein- 
after stated,  that  in  the  editorials  in  The  Record-Union 
and  in  the  final  decision  for  the  two  Newmans  by  the 
Justices  of  the  Supreme  Court  (hereinafter  stated), 
he  was  named  and  his  decision  of  the  case  referred 
to. 

In  deciding  the  case  in  the  Superior  Court,  Judge 
Wallace  gave  a  verbal  opinion,  and  it  was  with  much 
difficulty,  and  only  by  overcoming  his  resistance,  that 


54 

I  succeeded  in  having  a  copy  of  it  made  a  part  of  the 
record  on  appeal. 

A  copy  of  that  verbal  opinion  is  in  the  Appendix 
(pp.  3-4)  where  it  may  be  examined.  It  is  nothing" 
less  than  an  outrage.  It  passes  over  the  main  points 
of  the  case  without  a  word.  It  lays  down  a  falsehood 
as  the  law,  for,  as  every  lawyer  knows,  and  as  every 
one  who  has  gone  through  a  common  school  arithmetic 
knows,  it  is  the  law  that,  where  it  has  not  been  other- 
wise agreed  between  the  partners,  on  the  death  of  a 
partner,  all  the  assets  must  be  sold,  the  debts  paid  and 
the  proceeds  divided.  It  lays  down  falsehoods  for  the 
facts,  for  there  was  not  so  much  as  a  word  2iS>  evidence 
as  to  what  or  how  much  of  the  goods  were  inventoried 
and  appraised  by  the  Newmans.  No  person  whatever 
testified  "  that  according  to  the  usual  mercantile  way 
of  ascertaining  what  this  old  lady  and  her  daughters- 
ought  to  have  had,  a  calculation  on  the  basis  of  65  per 
cent  should  be  made,"  or  "  that  such  method  is  usual 
among  merchants,"  or  to  any  such  effect ;  and  even  if 
there  had  been  such  testimony  it  would  have  been  of 
no  importance,  for,  as  alre^y  mentioned,  the  law  pre- 
scribes the  rule.  Judge  Wallace's  decision  was  the 
same  as  that  of  the  corrupt  judges  in  the  reign  of 
Charles  the  First,  who,  according  to  Clarendon,  gave 
"judgment  of  law  founded  upon  matter  of  fact,  of 
which  there  was  neither  inquiry  nor  proof"* 


The  Case  in  the  Supreme  Court. 

An  appeal  to  the  Supreme  Court  from   a  judgment 
can  be  taken  only  within  a  year  from  the  entry  of  the 

♦Gneist,  History  of  the  English  Constitution,  Vol.  2,  pp.  240-241. 


55 

judgment.  From  the  judgment  entered  in  January, 
1893,  as  above  stated,  the  plaintiff  had  filed  an  appeal 
to  the  Supreme  Court  in  January,  1894.  That  appeal 
was  taken  only  upon  the  complaint,  the  answer,  the 
plaintiff's  demurrer  to  the  answer  and  the  judgment, 
and  did  not  show  any  of  the  evidence  given  on  the 
trial.  That  appeal  is  in  the  case  No.  15,731  on  the 
Register  of  the  Supreme  Court. 

In  order  to  show  the  entire  case  to  the  Supreme 
Court  it  was  necessary  to  appeal  also  from  the  order 
made  April  27,  1894,  as  above  stated,  refusing  to  set 
aside  the  decision  and  allow  a  new  trial,  for  it  was 
only  on  an  appeal  from  that  order  that  the  entire  evi- 
dence could  be  certified  to  and  filed  in  the  Supreme 
Court,  thus  bringing  the  entire  case  before  the  Su- 
preme Court.  An  appeal  from  that  order  was  there- 
fore taken  in  due  time.  The  certified  record,  setting 
forth  all  the  facts  of  the  case  as  above  stated,  was 
thereupon  filed  in  the  Supreme  Court.  This  is  the 
case  No.  15,857  on  the  Supreme  Court  Register,  re- 
ferred to  on  p.  16  of  this  paper. 


An  Appeal  From  the  Probate  Court: 

It  is  necessary  to  a  full  statement  of  the  case  and  to 
a  full  understanding  of  the  articles  in  The  Record- 
Union^  shown  in  the  Appendix*,  to  mention  also  an- 
other appeal — an  appeal  that  had  to  be  taken  from  the 
Probate  Court. 

The  accounting  suit  of  which  a  mock  trial  was  had 
before  Judge  Wallace,  as  above  stated,  was  being  car- 
ried on  in  the  name  of  an  administrator  of  Mr.  Levin- 


See  the  Appendix,  pp.  23,  36. 


56 

son's  estate,  who  had  been  appointed  snch  by  the  Pro- 
bate Court  on  the  resignation  of  the  executor.  This 
administrator  was  a  young  lawyer  whom  I  was  assist- 
ing by  giving  him  freely  a  place  in  my  office,  and 
giving  him  such  business  as  I  could.  He  had  been 
appointed  administrator  on  Mrs.  Levinson's  nomination, 
which  she  made  on  my  suggestion.  At  his  request 
two  other  lawyers,  then  practicing  in  San  Francisco, 
had  undertaken  to  assist  on  that  trial.  But,  during  the 
trial,  that  administrator  and  those  two  lawyers  became 
so  frightened  by  the  threats  which  were  continually  be- 
ing made  by  J.  B.  Reinstein,  of  ruin  to  them  as  attor- 
neys if  they  persisted  in  carrying  on  a  suit  which  so  re- 
flected upon  a  Justice  of  the  Supreme  Court,  that  they  all 
three  broke  down,  refused  to  go  on,  tried  out  of  court  to 
force  a  settlement  offered  by  the  Newmans — a  settlement 
by  which  the  Newmans  were  to  pay  the  costs  of  the  suit 
and  the  plaintiff's  attorney's  fees.  Upon  a  refusal  by 
Mrs.  Levinson  and  her  daughters  and  myself  to  accept 
such  a  settlement,  they  all  three  turned  traitors,  and 
did  all  they  could  to  assist  the  Newmans  to  win  the 
case.  To  go  on  with  the  suit  it  became  necessary  to 
remove  the  administrator.  Soon  we  discovered  that  he 
had  embezzled  moneys  of  the  estate.  We,  therefore, 
upon  the  ground  of  such  embezzlement,  had  him  sus- 
pended by  the  Probate  Court,  and  Mr.  Ira  P.  Rankin 
appointed  special  administrator  in  his  place.  There- 
upon our  embezzling  and  traitor  administrator  imme- 
diately resigned  and  filed  in  the  Probate  Court  an 
account  asking  enormous  allowances  out  of  the  estate 
on  the  ground  of  pretended  expenditures  in  carrying 
on  the  suit  and  for  commissions,  and  the  two  attorneys 
appeared   with  him   and  demanded  a  large  fee.     This 


57 

account  was  brought  on  for  settlement  and  tried  before 
Judge  J.  V.  Coffey  in  the  Probate  Court,  the  same 
Judge  who  previously  had  invariably  ruled  in  our 
favor,  as  above  stated. 

On  the  hearing  of  the  account  the  suspended  admin- 
istrator and  the  two  attorneys  appearing  with  him, 
assisted  by  other  attorneys  whom  they  called  in,  justi- 
fied their  course  by  raising  the  outcry  that  the  account- 
ing suit  was  an  attack  upon  a  Justice  of  the  Supreme 
Court,  and  that  to  carry  on  such  a  suit  was  outrageous. 
And  here  w^e  found  that,  as  soon  as  that  cry  was  raised, 
we  were  outlaws  in  the  Probate  Court  also.  The  Judge, 
J.  V.  Coffey,  as  soon  as  that  defense  was  made,  joined 
in  its  support,  continuall}^  treated  us  with  the  grossest 
browbeating  and  insult,  and  deliberately  tried  to  assist 
in  plundering  the  estate  of  the  small  amount  of  money 
remaining  in  it.  Three  plain  examples  will  show  the 
extreme  outrage  of  his  conduct,  and  all  three  may  be 
seen  stated  in  the  decision  of  the  case  afterward  made 
by  the  Supreme  Court  Justices,  even  after  denying  a 
hearing  of  the  appeal.  Judge  Coffey  allowed  the  ad- 
ministrator an  item  of  $240  out  of  the  estate  as  an  ex- 
pense paid  by  him  to  accountants  for  examining  the 
books  of  Newman  &  Levinson,  although  we  produced 
his  own  receipt  stating,  over  his  own  signature,  that 
the  money  with  which  he  paid  that  item  was  furnished 
him  for  the  purpose  by  Miss  Ada  Levinson,  one  of  the 
daughters,  out  of  her  own  personal  funds,  and  he  him- 
self expressly  admitted  on  oath  in  open  court  before 
Judge  Coffey  that  the  item  was  paid  thus  and  not  other- 
wise. Judge  J.  V.  Coffey  heard  that  proofs  that  sworn 
admission^  and  then  deliberately^  over  our  protests^  al- 
lowed him  another  $240  out  of  the  estate  for  that  very 


58 

item.  He  also  deliberately  allowed  him  $50  for  a  wit- 
ness fee  of  one  witness  for  one  day's  attendance, 
though  the  law  expressly  limited  such  a  fee  to  two 
dollars.  He  also,  deliberately,  and  over  our  protests, 
allowed  that  suspended  and  resigning  administrator 
full  commissions  for  closing  the  administration  of  the 
estate,  and  in  face  of  the  settled  law  that  no  commis- 
sion whatever  can  be  allowed  to  a  resigning  adminis- 
trator, no  such  commission  being  grantable  until  the 
final  close  of  the  entire  administration  of  the  estate. 
Such  was  the  conduct  of  Judge  Coffey  in  particulars 
where  it  was  plain,  deliberate,  indefensible,  brutal  out- 
rage. In  every  other  particular  his  conduct  in  settling 
the  account  was  of  the  same  character.  The  three 
particulars  above  stated  are  but  examples.  They  may 
be  seen,  where  their  indefensible  character  is  conceded, 
in  the  decision  of  the  Supreme  Court,  a  decision  made 
after  denying  to  Mrs.  Levinson  and  her  daughters  a 
hearing  of  the  appeal.* 

We  asked  the  Probate  Court  for  a  reconsideration  of 
the  order,  thus  settling  that  account.  We  were  inso- 
lently refused.  We  were  met  by  the  personality  of 
Ralph  C.  Harrison,  a  Justice  of  the  Supreme  Court, 
and  from  the  time  we  were  thus  met  Judge  Coffey 
w^ould  treat  Mrs.  Levinson  and  her  daughters  only  as 
outlaws.  And  during  all  the  hearing  of  the  account 
by  Judge  Coffey,  and  on  every  one  of  the  numerous 
days  to  which  it  was  from  time  to  time  continued,  one 
of  the  two  Newmans  was  present  in  the  Probate  Court — 
watching  with  malicious  smiles  the  effect  of  their  plot 
to  corrupt  the  courts  against  their  dead  partner's  help- 
less family. 

*  Estate  of  Levinson^  io8  Cal.,  450. 


59 

From  the  order  of  the  Probate  Court  thus  settlings 
the  suspended  administrator's  account,  Mrs.  Levinson 
and  her  daughters  appealed  to  the  Supreme  Court. 


The  Justices  of  the  Supreme  Court  as  Corrupt 
Agents  of  The  Southern  Pacific  Company. 

In  pages  31-33  above,  certain  facts  are  mentioned 
indicating  a  connection  between  five  of  the  Justices  and 
The  Southern  Pacific  Company.  Other  facts  must 
now  be  mentioned. 

In  February,  1893,  Wm.  F.  Fitzgerald,  a  carpet 
bagger  office  seeker,  became,  by  appointment  of  the 
Governor,  a  Justice  of  the  Supreme  Court,  for  the 
remainder  of  an  unexpired  term  which  was  to  end 
January  5,  1895.  In  November,  1894,  he  was  elected 
Attorney-General  of  the  State  for  a  term  of  four 
years  to  begin  January  7,  1895. 

In  the  latter  part  of  April,  1894,  Wm.  C.  Van  Fleet, 
a  person  who  had  connected  himself  by  marriage  with 
the  family  of  some  of  the  principal  members  of  The 
Southern  Pacific  Company,  was  appointed  by  the  Gov- 
ernor a  Justice  of  the  Supreme  Court  for  part  of  the 
remainder  of  an  unexpired  term,  a  part  which  was  to 
end  with  the  election  of  November,  1894.  In  The  Rec- 
ord-Union of  April  30,  1894,  along  eulogistic  editorial 
appeared  under  the  caption,  "  A  Good  Appointment,'' 
commending  his  appointment.  In  November,  1894, 
he  was  elected  to  the  same  office  for  the  remainder  of 
the  same  unexpired  term,  thus  extending  his  term  to 
January,  1899. 


6o 


1.  An  Instance  in  Proof  of  Such  Agency.  The  Corrupt 
Mutilation  of  a  Record  of  the  Supreme  Court — a  flu- 
tilation  for  The  Southern  Pacific  Company. 

On  August  i6,  1893,  a  case  between  Ezekiel  K. 
Heckman  as  plaintiff  and  John  A.  Swett  and  others  as 
defendants  was  decided  by  the  Supreme  Court  of  Cali- 
fornia. The  decision  was  draw^n  up  by  the  Commis- 
sioners of  the  Court  and  thereupon  submitted  to  and 
adopted  by  the  Justices.  The  case  involved  a  question 
of  title  to  land  on  the  sea  coast  of  the  State  and  below^ 
ordinary  high  water  mark  and  under  a  grant  from  the 
State.  The  decision  was  made  upon  a  submission  of 
the  case  upon  printed  briefs  and  wathout  oral  argument 
or  any  argument  except  that  contained  in  those  briefs. 
One  of  the  grounds  urged  in  the  plaintiff's  brief  as  a 
point  of  law  was  that  the  title  to  land  on  the  sea  coast  be- 
low ordinary  high  water  mark  is  held  by  the  State  in 
trust  for  the  public  and  that  the  State  has  no  power  to 
convey  any  such  land  to  a  private  person.  The  decision, 
responding  to  that  contention,  stated  expressly  and  at 
length  and  with  citation  of  authorities  that  the  State 
of  California  holds  in  trust  for  the  public  all  its  lands 
situated  on  the  sea  coast  and  below  ordinary  high  water 
mark,  and  has  no  power  to  convey  any  such  land  to  a 
private  person.  As  no  rehearing  was  granted  or  asked 
for,  the  decision  was  final  and  stood  as  an  authority  to 
be  followed  in  subsequent  decisions. 

But  it  happened  that  ten  days  after  that  decision 
was  made  the  City  of  Oakland  began  a  suit  in  the 
Superior  Court  of  Alameda  County  against  the  Oak- 
land Water  Front  Company  to  quiet  title  to  extensive 
and  very  valuable  lands  bordering  on  the  bay  of  San 
Francisco,  i.  e.^  on  the  sea  coast  and   below   ordinary 


6i 


high  water  mark,  and  constituting  the  water  front  of 
that  city.  The  Oakland  Water  Front  Company  was 
then,  as  it  still  is,  owned  by  the  principal  members  of 
The  Southern  Pacific  Company,  and  claii|(ed  the  title 
to  all  those  lands  under  a  purported  grant  from  the 
State.  While  the  suit  was  in  progress  and  before  it 
came  to  trial,  the  Justices  of  the  Supreme  Court,  under 
color  of  their  statutory  power  to  publish  reports  of  the 
decisions  of  the  Supreme  Court  as  authorities  to  be 
followed  in  subsequent  decisions,  published  in  March, 
1894,  a  report  of  the  decision  of  the  case  of  Heckman 
vs.  Swett^  above  mentioned.  In  doing  so  they  muti- 
lated it  in  the  interest  of  the  proprietors  of  The  South- 
ern Pacific  Company.  The  mutilation  consisted  in 
cutting  out  all  that  part  of  the  decision  holding  that 
the  State  has  no  power  to  grant  such  lands  to  a  private 
person,  falsely  making  the  decision  as  so  published 
appear  as  if  no  such  ground  or  point  of  law  had  been 
decided.  The  decision  as  it  was  actually  made  may  be 
seen  in  Volume  33  of  the  Pacific  Reporter  at  page 
1099.  The  decision  as  mutilated  may  be  seen  in  Vol- 
ume 99  of  the  California  Reports  at  page  303.  The 
Justices  who  made  the  mutilation  were  William  H. 
Beatty,  the  Chief  Justice,  and  Ralph  C.  Harrison,  T. 
B.  McFarland,  C.  H.  Garoutte,  W.  C.  Van  Fleet,  Wil- 
liam F.  Fitzgerald  and  John  J.  DeHaven,  Associate 
Justices.  The  Justice  who,  in  particular,  gave  to  the 
reporter  the  order  for  the  mutilation  was  Ralph  C. 
Harrison,  and  the  reporter,  (Carter  P.  Pomeroy)  so 
testified  in  the  Superior  Court  of  Alameda  County  on 
the  trial  in  1894  of  the  water  front  suit  above  men- 
tioned. 

And   afterward   the  suit    (above  mentioned)  of  the 


62 

City  of  Oakland  against  the  Oakland  Water  Front 
Company  was  appealed  to  the  Supreme  Court  and  was 
there  decided  in  September,  1897,  in  a  decision  drawn 
up  by  WnuH.  Beatty,  the  Chief  Justice,  a  decision 
declaring  that  water  front  of  the  City  of  Oakland — 
land  on  the  sea  coast  and  below  high  water  mark — to 
be  the  property  of  the  Oakland  Water  Front  Company, 
by  virtue  of  its  purported  grant  from  the  State,  and 
making  no  mention  of  the  case  of  Heckman  vs.  Swett^ 
or  of  the  rule  of  law  there  settled.  This  decision  of 
the  Oakland  Water  Front  Case  may  be  seen  in  Vol. 
118,  Cal.  Reports,  at  p.  160. 


2.  Another  Instance.     The  Notorious  Decision  in  the  Case  of 
Hunt  vs.  Ward. 

In  July,  1862,  the  United  States  Congress  passed  an 
act  loaning  bonds  of  the  United  States  to  the  amount 
of  many  millions  of  dollars  to  the  Central  Pacific  Rail- 
road Company  to  aid  in  the  building  of  the  railroad, 
and  upon  the  condition  that  the  company  should  repay 
the  bonds  so  loaned,  with  the  interest  carried  by  them, 
at  the  end  of  thirty  years  after  receiving  the  bonds  so 
loaned.  Under  that  act  the  Central  Pacific  Railroad 
Company  received  from  the  United  States,  in  the  years 
1865  to  1869,  such  bonds  to  the  amount  of  many  mill- 
ions of  dollars,  to  be  paid  for  at  various  times  from 
1895  to  1899.  At  the  beginning  of  1893  the  amount 
of  that  debt  of  the  Central  Pacific  Railroad  Com- 
pany to  the  United  States  was  upwards  of  sixty 
million  dollars,  and  the  corporation  was  insolvent. 
By  certain  provisions  of  the  Constitution  and  statutes 
.of  California  stockholders  of  corporations  are  primarily 


63 

liable  for  the  debts  of  the  corporation — provisions  under 
which  the  stockholders  of  the  Central  Pacific  Railroad 
Company  were  liable  to  be  sued  by  the  United  States, 
in  the  United  States  courts,  for  that  debt.  The  stock- 
holders thus  liable  were  the  principal  members  of  The 
Southern  Pacific  Company.  But  in  the  United  States 
courts  it  is  the  established  rule  to  follow  the  decisions 
of  the  Supreme  Court  of  a  State  in  determining  what 
is  the  constitution  or  law  of  the  State. 

It  was  under  such  circumstances  that  in  October, 
1893,  the  Justices  of  the  Supreme  Court  of  California, 
made  the  outrageously  false  and  notorious  decision  of 
the  case  of  Hunt  vs.  IVard^  in  which  they  ruled  with 
outrageous  falsehood  that  the  meaning  and  effect  of 
Section  359  of  the  Code  of  Civil  Procedure  of  Califor- 
nia was  that  stockholders  of  corporations  are  not  liable 
for  any  debt  of  the  corporation  unless  such  debt  falls 
due  within  three  years  from  the  time  when  it  was  con- 
tracted. And  in  March,  1894,  they  reported  that  deci- 
sion in  Volume  99  of  the  California  Reports  as  an 
authority.  A  review  of  the  decision  may  be  seen  in  The 
American  Law  Review  (Vol.  28,  p.  907  and  Vol.  29,  p. 
109),  where  it  is  declared  that  the  true  meaning  of  the 
statute  was  shown  to  the  court  but  that  ^'  the  court 
slurred  it  over  in  a  disgraceful  manner,"  and  where 
the  decision  is  characterized  by  such  expressions  as 
*^  a  stolid  misinterpretation  of  the  ordinary  sense  of 
the  statute,"  "  a  palpable  misreading  of  a  statute," 
*'  absolutely  novel  and  against  the  plain  letter  of  the 
constitution,"  "  the  statute  is  deliberately  garbled," 
and  "  a  court  which  can  render  such  decision  is  not  a 
benefaction  but  a  calamity." 

And  afterwards,  in  a  suit  brought  in  March,  1895, 


64 

in  the  United  States  Circuit  Court  for  the  Northern 
District  of  California,  by  the  United  States  against  the 
executrix  of  Leland  Stanford,  one  of  those  stockholders, 
to  recover  upwards  of  fifteen  million  dollars,  his  share 
of  the  debt  of  the  Central  Pacific  Railroad  Company, 
that  decision  of  Hunt  vs.  If^ardwas  set  up  as  a  defense. 
The  case  was,  however,  decided  against  the  United 
States  upon  another  ground. 

The  notorious  decision  of  Hunt  vs.  Ward  was  writ- 
ten by  the  Justice,  T.  B.  McFarland,  and  was  concurred 
in  by  Wm.  H.  Beatty,  the  Chief  Justice,  and  by  the 
Justices  Ralph  C.  Harrison,  C.  H.  Garoutte,  Wm.  F. 
Fitzgerald  and  John  J.  De  Haven.  None  of  the  Jus- 
tices dissented. 


3.     Another  Instance.     The    Decision    in   the    Estate   of 
Catherine  fl.  Garceion. 

At  the  California  State  election  in  November  1894, 
a  board  of  three  Railroad  Commissioners  was  elected, 
two  Democrats  and  one  Republican.  The  two  Demo- 
crats were  elected  upon  the  party  platform  which 
pledged  them  to  make  a  substantial  reduction  of  the 
freight  charges  upon  the  railroads  of  The  Southern 
Pacific  Company  throughout  the  State.  As  the  two 
who  had  been  elected  upon  that  platform  constituted  a 
majority  of  the  Board,  their  election  made  it  reasonably 
certain  that  such  a  reduction  would  presently  be  at- 
tempted. It,  therefore,  immediately  became  a  chief 
object  of  The  Southern  Pacific  Company  to  defeat  any 
such  reduction,  and  to  do  so  in  such  a  way  as  to  hood- 
wink the  people  and  make  them  believe  that  it  was 
done  fairly. 


65 

The  obvious  means  by  which  any  attempt  to  make 
such  reduction  in  the  charges  for  carrying  freight  upon 
railroads  might  be  defeated  would  be  a  suit  in  the 
United  States  Circuit  Court  at  San  Francisco  by  The 
Southern  Pacific  Company  against  the  Board  of  Rail- 
road Commissioners  for  an  injunction.  To  handle  such 
a  suit  effectively  it  would  be  necessary  for  The  South- 
ern Pacific  Company  to  own  and  control  the  attorneys 
who  should  represent  the  Board  of  Railroad  Commis- 
sioners, that  is,  the  people  of  the  State.  Now,  at  the 
election  in  1894,  Wm.  F.  Fitzgerald,  whose  term  as 
Associate  Justice  of  the  State  Supreme  Court  was  to 
expire  on  January  5,  1895,  was  elected  Attorney-Gen- 
eral of  the  State  for  a  term  of  four  years  to  begin  Janu- 
ary 7,  1895.  He  was  a  political  adventurer,  and  a 
pliant  tool  of  The  Southern  Pacific  Company.  If  the 
injunction  suit  should  be  resorted  to,  he,  as  the  Attor- 
ney-General of  California,  w^ould  direct  and  control  the 
defense,  and  w^ould  also  choose  such  other  attorneys  as 
might  be  employed  to  assist  in  that  defense.  In  mak- 
ing such  choice  he  could  be  relied  upon  to  give  effect  to 
the  wishes  of  The  Southern  Pacific  Company,  but 
what  was  wanted  was  that  he  should  choose  as  his 
associate  counsel  for  the  defense  of  the  injunction  suit 
some  attorne}^  who  would  be  thought  by  the  people  to 
be  an  efficient  and  faithful  champion  of  their  rights, 
and  yet  in  whose  mouth  The  Southern  Pacific  Com- 
pany would  have  a  sure  curb  and  bit  by  which,  without 
its  being  seen  or  known  by  the  people,  they  could  con- 
trol him  with  absolute  certainty. 

An  attorney  who  was  among  the  foremost  of  those 
desirable  in  such  a  role  was  W.  W.  Foote.  Some 
years  previously  he  had  been  a  member  of  the   Board 


66 

of  Railroad  Comuiissioiiers  of  California,  where,  as  he 
was  the  democratic  minority  in  the  Board,  he  had  the 
opportunity,  without  doing  any  harm  to  The  Southern 
Pacific  Company,  to  exhibit  himself  to  the  people  of 
the  State  as  the  one  member  of  the  Board  who  would 
effect  a  substantial  reduction  of  fares  and  freights  if  he 
only  could.  Of  that  opportunity  he  fully  availed  him- 
self and  thus  gained  with  the  people  of  the  entire  State 
a  reputation  of  being  the  enemy  of  The  Southern 
Pacific  Company.  Besides,  he  was,  as  apparently  he 
still  is,  a  pet  of  The  Examiner^  a  newspaper  which 
for  many  years  has  professed  to  be  the  champion  of 
the  people  against  the  exactions  and  tyranny  of  The 
Southern  Pacific  Company  and  their  allies.  There  was 
to  be  sure,  a  far  abler  attorney  in  San  Francisco,  D.  M. 
Delmas,  a  genuine  opponent  of  The  Southern  Pacific 
Company,  toward  whom  they  apparently  cherished  an 
irreconcilable  aversion.  But  W.  W.  Foote  was  an 
attorney  who,  if  he  should  be  chosen  as  a  representa- 
live  of  the  people  to  defend  against  the  injunction  suit, 
could  be  held  up  before  the  people  as  their  ef&cient  and 
genuine  champion.  And  in  a  case  [Estate  of  Catherine 
M.  Garcelon)  which  was  then  pending  in  the  Supreme 
Court  of  California  and  was  about  to  be  decided,  the 
opportunity  was  at  hand  where  The  Southern  Pacific 
Company,  through  their  corrupt  agents,  who  as  Chief 
Justice  and  Associate  Justices  composed  the  Court,  to 
make  just  the  required  bit  and  curb  and  bridle  for 
W.  W.  Foote.     The  opportunity  was  as  follows  : 

In  August,  1890,  Dr.  Samuel  Merritt  of  Oakland, 
California,  died  leaving  an  estate  of  upwards  of  two 
million  dollars  in  value.  His  only  heirs  were  his 
sister,  Catherine  M.  Garcelon   and   his  two  nephews. 


James  P.  and  Frederick  A.  Merritt,  the  sons  of  his 
deceased  brother.  Catherine  M.  Garcelon  was  then  a 
feeble  old  woman  seventy-six  years  of  age.  She  had 
never  had  a  child.  For  years  she  had  been  Dr. 
Merritt^s  pensioner  and  dependent  and  lived  with 
him  in  his  home.  The  two  nephews  were  then, 
as  they  always  have  been,  extremely  simple-minded 
persons  always  capable  of  being  controlled  as  easily 
and  absolutely  as  if  they  were  children,  by  any  one 
representing  himself  as  their  friend  and  having  their 
confidence. 

Upon  Dr.  Merritt's  death  there  was  found  among  his 
papers  a  wjU  which  had  been  made  many  years  pre- 
viously. The  will  gave  almost  his  entire  estate  to  his 
sister  the  aged  and  feeble  Catherine  M.  Garcelon  and 
cut  off  his  two  nephews  with  a  trifling  pittance.  The 
will  was  straightway  presented  to  the  probate  depart- 
ment of  the  Superior  Court  of  the  State  for  Alameda 
County  and  was  without  opposition  admitted  to  probate 
as  Dr.  Samuel  Merritt's  last  will. 

For  several  years  before  Dr.  Merritt's  death,  one 
Stephen  W.  Purington,  an  old  bachelor  relative  of  Dr. 
Merritt  and  his  sister,  lived  with  them 'in  Oakland  and 
was  Dr.  Merritt's  confidential  agent.  This  Stephen 
W.  Purington  cherished  an  inveterate  hatred  of  the 
two  nephews.  From  the  time  of  Dr.  Merritt's  death 
he  continued  to  live  in  the  house  with  Catherine  M. 
Garcelon,  as  her  business  manager. 

If  there  had  been  no  will  the  two  nephews,  known 
as  the  "Merritt  boys"  would  have  been  entitled  to  one 
half  of  the  estate.  And,  in  fact,  their  aunt,  Catherine 
M.  Garcelon  was  willing  to  give  them  one  half  of  the 
estate  and  would  probably  have  done  so   if  they   had 


68 


been  allowed  to  see  her.  But  they  were  kept  from  her 
and  were  induced  to  employ  W.  W.  Foote  as  their 
attorney. 

As  neither  of  the  Merritt  boys  had  any  property 
nor  any  prospect  of  obtaining  any  property  except  his 
share  of  the  estate  left  by  their  uncle,  Dr.  Merritt,  W. 
W.  Foote  immediately  obtained  from  them  a  contract 
by  which  they  agreed  to  give  him  one  fourth  of  any- 
thing he  could  obtain  for  them  out  of  that  estate, 
whether  it  should  be  obtained  by  contesting  the  wall  or 
by  compromise. 

Having  obtained  that  contract,  W.  W.  Foote,  with 
the  help  of  confederates,  had  the  Merritt  boys  sent 
immediately  to  Sissons  in  the  northern  part  of  Cali- 
fornia and  there  made  drunk  and  kept  drunk  until  he 
could  complete  the  terms  for  selling  them  to  their 
enemy. 

Before  the  Merritt  boys  thus  fell  into  the  hands  of 
W.  W.  Foote,  one  of  his  friends  John  A.  Stanly, 
known  as  ^' Judge  Stanly,"  a  shrewd,  cunning  and  un- 
scrupulous attorney  who  for  many  years  had  been  a 
near  neighbor  of  Dr.  Samuel  Merritt  and  his  aged  sis- 
ter, and  who  was  indebted  to  Dr.  Merritt  in  a  large 
sum,  became  the  confidential  attorney  of  Catherine  M. 
Garcelon  and  with  the  assistance  of  Stephen  W.  Pur- 
ington,  obtained  a  complete  ascendency  over  her. 
As  soon  as  W.  W.  Foote  had  obtained  the  contract,  just 
mentioned,  from  the  Merritt  boys,  the  two  friends,  W. 
W.  Foote  and  Judge  Stanly  met  (in  November,  1890), 
and  W.  W.  Foote  then,  for  a  bribe  of  $125,000  out  of 
the  estate  left  by  Dr.  Merritt,  sold  his  clients,  the  two 
Merritt  boys,  and  delivered  them  bound  hand  and  foot, 
to  Judge  Stanly.     This  was  arranged  as  follows  : 


69 

A  "compromise"  between  the  aged  Catherine  M.  Gar- 
celon  and  the  two  nephews  was  contrived,  by  the  terms 
of  which  the  two  nephews  were  to  sign  papers  agree- 
ing never  to  claim  anything  as  heirs  or  heir  of  their 
annt,  Catherine  M.  Garcelon  and  never  to  contest  or 
question  any  disposition  of  property  that  any  one  might 
obtain  from  her  and  never  to  contest  or  question  the 
validity  of  any  paper  in  the  form  of  a  will  which  she 
might  leave  after  death.  In  return,  certain  property, 
the  least  valuable  parts  of  the  estate  left  by  Dr. 
Samuel  Merritt  —  parts  of  the  estate  which  had 
been  appraised  at  the  value  of  $375,000,  and  much  of 
which  was  unproductive — -were  to  be  conveyed  to  a 
trustee,  who  should  hold  it  and  care  for  it,  and  manage 
it  in  whatever  way  he  should  choose  and  pay  its  net 
income  monthly  in  equal  shares  to  the  two  Merritt  boys 
as  long  as  they  should  live;  but  the  deed  of  trust  was 
to  contain  a  provision  that  if  either  of  them  should  at 
any  time  contest  or  question  the  validity  of  any  dispos- 
ition of  propert}^  which  their  aunt,  Catherine  M.  Gar- 
celon, might  make,  or  the  validit}^  of  any  paper  pur- 
porting to  be  executed  by  her  either  as  a  conveyance 
of  property  in  her  life  time,  or  as  her  will — that  such 
act  on  the  part  of  either  of  the  nephews  should  be  a 
forfeiture  of  the  rights  of  both  to  any  and  every  part 
of  the  property  of  the  trust,  and  that  the  property  so 
forfeited  should  then  go  to  those  whom  she  might  name 
as  residuary  devisees  in  her  will.  In  addition  to  the 
property  so  to  be  placed  in  trust,  the  sum  of  $125,000 
out  of  the  estate  left  by  Dr.  Merritt  was  to  be  paid 
absolutely  and  its  payment  to  be  witnessed  by  receipts 
so  drawn  as  to  make  it  appear  that  the  $125,000  was 
paid    to    the    two    nephews.       But  in  actual   fact  this 


70 

$125,000  was  to  be  paid  to  W.  W.  Foote,  tinder  color 
of  its  being  his  contingent  fee  of  one-fourth  of  what 
he  should  recover  for  the  Merritt  boys  as  above  men- 
tioned. 

That  "  compromise  "  was  secretly  arranged  in  No- 
vember, 1890,  between  Judge  Stanly  and  W.  W.  Foote, 
and  took  but  a  few  days  in  its  preparation.  The  papers 
were  drawn  up  by  Judge  Stanly.  x\s  soon  as  they  were 
ready,  W.  W.  Foote  had  the  two  nephews  brought  from 
Sissons,  had  them  taken  on  November  14,  1890,  direct 
from  their  journey,  to  his  office,  and  had  them  then 
and  there  sign  the  papers.  The  trust  deed  which  had 
been  agreed  upon  was  signed  by  Catherine  M.  Garcelon 
and  was  made  to  one  Knowles  as  trustee,  and  the 
property  embraced  in  it  was  afterward  known  as  the 
Knowles  trust.  W.  W.  Foote  received  the  $125,000  in 
money.  Thus  did  W.  W.  Foote,  for  a  bribe  of 
$125,000,  sell  his  clients  James  P.  and  Frederick  A. 
Merritt  and  deliver  them  bound  hand  and  foot  to  their 
cunning  and  cruel  enemy,  Judge  Stanly. 

The  great  accession  of  wealth  thus  acquired  by 
W.  W.  Foote  was  presently  well  known  to  many  per- 
sons in  San  Francisco  and  Oakland.  And,  as  the 
Merritt  boys  would  talk  and  did  talk,  the  means  by 
which  he  had  acquired  it  soon  became  known  to  many 
persons.  In  1892  I  myself  talked  it  all  over  with 
Wm.  F.  Herrin,  who  shortly  afterward  became  the 
Chief  Counsel  of  The  Southern  Pacific  Company. 

As  soon  as  Judge  Stanly  had  thus  obtained  from  the 
Merritt  boys  their  signatures  to  those  papers  which 
purported  to  take  from  each  of  them  the  capacity  to  be 
an  heir  to  Catherine  M.  Garcelon,  he  proceeded  to  have 
her  convey  to  himself  and  Stephen  W.  Purington  and 


71 

the  survivor  of  them,  as  trustees,  the  remainder  of  her 
property  except  only  a  trifling  portion.  Stephen  W. 
Purington,  as  well  as  Catherine  M.  Garcelon,  was 
then  old  and  about  to  die  (he  died  in  September,  1892), 
so  that  it  was  in  fact  Judge  Stanly  himself  and  he  alone 
who,  as  trustee,  thus  obtained  her  property.  The  prop- 
erty he  thus  obtained  from  her  was  the  cream  of  the 
estate  which  had  been  left  by  Dr.  Merritt,  and  was 
about  one  and  a  quarter  million  dollars  in  value.  Under 
cover  of  the  trust  he  also  secretly  obtained  from  her 
large  sums  of  money  for  himself,  one  item  alone  being 
$25,000.  By  the  terms  of  the  trust  deed,  which  he  had 
thus  had  her  execute  to  him,  sums  of  money  were 
given  to  almost  every  one  who  was  acquainted  with 
her,  thus  in  substance  bribing  them  to  be,  in  case  of 
any  contest  of  the  validity  of  the  transaction,  witnesses 
for  Judge  Stanly.  He  also  drew  up  for  her  a  will,  and 
had  her  execute  it  as  a  will — a  will  in  which  the  two 
nephews  were  cut  off  with  the  gift  of  a  picture  to  each, 
and  in  which  two  persons,  both  of  whom  were  bene- 
ficiaries in  the  trust  deed  made  by  her  to  Judge  Stanly, 
were  made  her  residuary  legatees  and  devisees,  and  as 
such  were  directed  to  watch  for  any  ground  of  forfeiture 
of  the  Knowles  trust  property,  and,  in  case  of  any  such 
ground  arising,  to  claim  and  recover  all  that  property. 
Catherine  M.  Garcelon  died  December  29, 1891,  and  on 
February  i,  1892,  Judge  Stanly  had  her  will  last  men- 
tioned admitted  to  probate  in  the  Superior  Court  of  Ala- 
meda County.  In  September,  1892,  James  P.  Merritt, 
one  of  the  nephews,  filed  a  contest  of  it,  claiming  to  be,  as 
he  of  course  was,  one  of  her  two  heirs  at  law.  But  he 
was  still  so  surrounded  by  and  in  the  power  of  the 
friends  or  confederates  of  W.  W.  Foote  that  it  was  im- 


72 

possible  for  him  to  show  to  the  court  that  he  had  been 
betrayed  as  above  stated.  One  of  Judge  Stanly's 
attorneys  appeared,  and,  as  attorney  for  the  residuary 
legatees,  resisted  the  contest  upon  the  ground  that  the 
legal  effect  of  the  papers  which  the  two  Merritt  boys 
had  signed  on  the  "  compromise,"  as  above  stated,  was 
such  as  to  destroy  the  capacity  of  each  of  them  to  be- 
come her  heir.  Upon  that  contention  the  case  was 
taken  to  the  Supreme  Court  of  California. 

Here,  then,  was  the  opportunity — an  opportunity 
well  understood  by  that  accomplished  Machiavel  Wm. 
F.  Herrin,  the  Chief  Counsel  of  The  Southern  Pacific 
Company— to  make  an  effective  curb  and  bit  and  bridle 
for  the  mouth  of  W.  W.  Foote.  If  the  Supreme  Couit 
should  rule  that  the  legal  effect  of  the  papers  which  he 
had  induced  his  clients  the  Merritt  boys  to  sign  was 
not  such  as  to  cut  them  off  from  being  the  heirs  of 
Catherine  M.  Garcelon,  then,  although  he  had  obtained 
an  enormous  fee  for  but  a  few  weeks  work,  still  he  had 
not  actually  sold  his  clients  to  their  enemy.  If  the 
Supreme  Court  should  rule  that  by  signing  those  pa- 
pers the  two  Merritt  boys  forfeited  their  heirship,  then 
W.  W.  Foote  was  clearly  a  traitor  and  could  be  by  The 
Southern  Pacific  Company  safely  published  as  such  in 
all  the  newspapers  of  California  whenever  they  should 
see  fit  to  do  so. 

And  accordingly,  on  December  i,  1894,  the  Supreme 
Court  of  California,  in  a  decision  drawn  up  b}^  the  As- 
sociate Justice  John  J.  DeHaven,  and  concurred  in  by 
all  the  other  Justices — a  decision  full  of  bias  and  trick- 
ery, ruled  that  the  legal  effect  of  the  papers  so  signed 
by  the  Merritt  bo3^s  was  such  as  to  destroy  the  capacity 
of  either  of  them  to  become   an   heir   of  Catherine   M. 


73 

Garceloii  and  that  therefore  James  P.  Merritt  had  no 
right  to  set  up  any  contest  of  the  will.* 

This  was  the  bit  and  curb  and  bridle  prepared  for 
W.  W.  Foote.  How  effective  it  was  may  be  seen  from 
a  simple  test  made  by  me  and  stated  in  Chapter  VII 
below.  By  only  putting  my  hand  upon  it,  I  alone  and 
against  all  odds  instantly  put  W.  W.  Foote  hors  de 
combat^  as  there  shown.  What,  then,  could  not  the 
mighty  Southern  Pacific  Compan^^  do  with  him  ? 

To  return  to  the  contemplated  reduction  of  railroad 
charges  for  carrying  freight  in  California.  In  Septem- 
ber, 1895,  the  Board  of  Railroad  Commissioners,  after 
a  long  investigation,  adopted  a  resolution  making  a  re- 
duction of  eight  per  cent,  upon  the  rates  for  carrying 
grain  and  another  resolution  announcing  their  inten- 
tion to  make  a  general  reduction  of  25  per  cent,  upon 
all  charges  of  The  Southern  Pacific  Company  for  car- 
rying freight  within  the  State.  Thereupon  The  South- 
ern Pacific  Company  commenced  its  injunction  suit  in 
the  United  States  Circuit  Court  in  San  P'rancisco,  one 
of  their  attorneys  in  the  case  being  the  same  E-  S. 
Pillsbury  who  is  several  times  mentioned  in  these 
page  .  Wm.  F.  Fitzgerald,  as  the  Attorne}- -General 
of  California,  took  charge  of  the  defense.  The  Board 
of  Railroad  Commissioners  adopted  a  resolution  re- 
questing the  employment  of  D.  M.  Delmas  to  assist  in 
the  defense.  The  Attorne3^-General  refused  to  comply 
with  the  request,  but  instead  chose  as  his  associate 
counsel  Robert  Y.  Hayne  (whose  character  is  shown  a 
few  pages  further  on)  and  W.  W.  Foote.  In  actual 
fact  every  attorney  who  appeared  in  the  suit  osten- 
sibly     against      The      Southern      Pacific     Company 

*  Estate  of  Garcel-on,  104  Cal.,  571. 


74 

was  owned  and  controlled  absolutely  by  The  Southern 
Pacific  Company.  As  soon  as  the  suit  was  commenced, 
a  preliminary  injunction  was  procured  from  the  Court 
forbidding  any  reduction  in  the  charges  of  The  South- 
ern Pacific  Company  until  the  final  determination  of 
the  suit.  Then  began  and  was  long  kept  up  a  great 
pretense  of  a  legal  contest — long  arguments  in  the 
United  States  Circuit  Court,  long  speeches  of  Wm.  F. 
Fitzgerald,  Robert  Y.  Hayne  and  W.  W.  Foote,  which 
were  at  great  length  published  and  bragged  about  in 
The  Examiner.  In  1897,  ^^  Legislature  of  California 
was  induced  to  pass  a  bill,  which  the  Governor  (James 
H.  Budd)  promptly  approved,  by  which  the  State  of 
California  paid  to  Robert  Y.  Hayne  and  W.  W.  Foote 
$20,000  for  their  services  in  the  suit.  But  the  injunc- 
tion was  kept  in  force  until  the  weeks  had  become 
months  and  the  months  years,  and  until,  by  means  of 
the  State  election  on  November  8,  1898,  The  Southern 
Pacific  Company  foisted  a  Board  of  Railroad  Commis- 
sioners of  their  own  selection  upon  the  State  of  Cali- 
fornia. Thereupon,  having  no  more  use  for  the  injunc- 
tion suit,  they  dismissed  it  in  May,  iSggJunchcs  officio. 


If  at  any  time  in  September  or  October,  1890,  James 
P.  and  Frederick  A.  Merritt  had  called  upon  their  aunt, 
Catherine  M.  Garcelon,  they  could  have  received  from 
her  freely  their  full  rights  as  heirs  of  their  uncle.  Dr. 
Merritt,  and,  by  virtue  of  such  rights,  a  share  of  about 
one  million  dollars  in  value  out  of  the  estate  which  he 
had  left,  and  within  less  than  a  year  and  a  half  later 
they  might  have  inherited  property  of  about  another 
million  dollars  in  value  to  te  left  by  her.  But,  instead, 
they  fell  into  the  hands  of  W.  W.  Foote;  and  W.  W. 


75 

Foote,  dragging  them  with  him,  fell  into  the  hands  of 
The  Southern  Pacific  Company.  Here  were  two  citi- 
zens, little  dreaming  who  were  the  real  authors  of  their 
fate,  despoiled  of  a  great  inheritance,  to  strengthen  the 
Machiavellian  net  of  The  Southern  Pacific  Company, 


The  foregoing  instances  are  but  examples  of  what 
was  then  and  ever  since  has  been  going  on  in  the 
Supreme  Court  of  California.  It  was  to  such  unspeak- 
able scoundrels,  traitors  to  the  most  sacred  of  all  pub- 
lic trusts,  that,  in  ignorance  of  their  actual  character, 
we  were  at  great  labor  and  at  heavy  expense  appealing 
for  justice. 


The  Plaintiff's  Brief  in  tlie  Supreme  Court. 

As  the  plaintiff's  attorney  in  the  suit  I  was  required 
by  the  rules  of  the  Supreme  Court  to  file  a  printed 
argument,  stating  the  grounds  on  which  the  adminis- 
trator of  Mr.  Levinson's  estate  and  the  deceased  part- 
ner's family  represented  by  him  claimed  to  be  entitled 
to  relief  against  the  two  Newmans.  I  complied  by 
filing  on  November  30,  1894,  an  elaborate  argument  or 
brief  setting  forth  and  elucidating  the  case  fully, 
clearly,  and  with  the  most  scrupulous  care,  point  by 
point.  One  branch  of  the  argument  was  devoted  to 
an  exposition  of  the  fraudulent  confederacy  of  the 
Newmans  with  Ralph  C.  Harrison  and  the  executor; 
another  was  devoted  to  showing  that  the  secret  trans- 
action of  September  6,  1890,  was  illegal  and  void  under 
the  rule  of  law  applied  and  illustrated  in  deciding  the 
case  of  Egerton  vs.  Earl  Brownlow,  4  H.  L.  C.  235. 
On  both  these  points  the  brief  was   exceedingly  plain 


76 

spoken  and  the  language   criminatory,  as  any  proper 
discussion  of  that  branch  of  the  case  had  to  be. 

The  brief  thus  filed  was  not  a  merely  voluntary  pro- 
duction. The  attorney  had  no  option.  On  the  con- 
trary, a  brief  was  absolutely  required  by  the  rules  of 
the  Supreme  Court,  and  by  its  settled  practice  as  well, 
as  a  condition  upon  which  the  right  to  a  consideration 
of  the  appeal  depended.  * 

The  brief  thus  filed  consists  of  44]  printed  pages. 
It  covers  every  point  of  the  case  in  a  most  orderl}^ 
manner.  In  every  point  that  could  possibly  arise  in 
the  case,  it  sets  forth  the  facts  and  the  law  with  the 
most  painstaking  fidelity  and  fullness  and  clearness. 
It  is  profuse  in  citation  of  the  statutes  and  the  decis- 
ions of  the  Courts  relating  to  the  various  points  of 
law  involved,  giving  the  language  of  the  Judges  in 
deciding  the  particular  points  referred  to.  The  utmost 
pains  was  taken  to  cite  only  such  decisions  as  were  of 
unquestionable  authority  and  were  directly  in  point. 
The  facts  and  the  law  and  the  illustrations  drawn  from 
decisions  are  there  blended  and  united  by  the  most 
careful  reason  and  logic  into  a  clear  and  harmonious 
whole,  so  that  no  reader  of  the  brief  could  possibl}^ 
make  any  honest  mistake  about  the  case.  In  parts 
it  is  an  exceedingly  full,  true  and  elaborate  treatise  on 
partnership  law,  and  on  important  branches  of  the 
law  of  contracts.  Any  lawyer  or  any  author  accus- 
tomed to  such  work,  will  see  from  an  examination  of 
the  brief,  that  it  could  not  have  been  produced  without 
many  months  of  hard,  unremitting  study  and  thought 
and  toil.  Merely  to  supervise  the  printing  of  such  a 
work  is  a  long  and  great  labor.  To  any  lawyer  of 
California    acquainted    with    preparing    briefs    for    the 


n 

Supreme  Court,  it  is  well  known  that  such  a  brief  can 
not  be  printed  without  an  expense,  for  the  printing 
alone,  of  nearly  $400.  In  every  particular,  in  every 
detail,  and  throughout,  the  brief  was  most  strictly 
truthful.  It  was  a  great  and  most  elaborate  effort.  It 
is  the  fullest  proof  that  its  author  was  devoted  to  win- 
ning justice  for  his  clients  by  truth  and  by  truth  alone. 
That  brief  may  challenge  the  highest  approval  of  hon- 
est and  intelligent  men  and  lawyers  throughout  the 
world. 

Some  conception  of  the  extreme  care,  the  fidelit}^  and 
great  labor  with  which  the  brief  was  prepared  may  be 
seen  from  the  following  particulars :  There  were  cited 
or  quoted  in  it  156  volumes  of  law  books  and  140  judi- 
cial decisions.  Under  the  various  d^'isions  of  the 
argument  there  were  226  citations  of  law  authorities, 
and  185  quotations  from  judicial  decisions,  text  books 
of  law  and  the  codes  of  California.  The  brief  con- 
tained also  190  quotations  from  the  evidence  in  the 
record,  and  173  citations  of  the  record  besides  the  pas- 
sages quoted.  It  also  contained  235  cross  references 
and  five  references  to  passages  in  the  brief  which  had 
been  filed  for  the  two  Newmans  on  the  appeal  which 
had  been  previously  taken  from  the  judgment  as  above 
stated.  The  briefs  which  I  had  prepared  for  Mrs.  Lev- 
inson  and  her  daughters  and  filed  in  the  Supreme 
Court  on  each  of  the  two  other  appeals  were  also  un- 
usually elaborate. 

The  brief  had  been  prepared  with  very  extreme  care 
and  elaboration,  and  with  unsparing  pains.  So  gross 
and  outrageous  was  the  denial  of  justice  which  we  had 
met  in  the  Superior  Court,  so  triumphant  there  was 
the  plot  of  Justice  Harrison,  the  two  Newmans   and 


J^' 


78 

their  confederates  that  I  had  determined  to  have  the 
case  so  presented  in  the  brief  to  be  filed  in  the  Supreme 
Court  that  the  justice  of  the  case  would  be  manifest 
and  unavoidable  and  unanswerable  from  every  possible 
point  of  view.  I  was  strengthened  in  the  resolve  from 
the  fact  that  in  the  brief  which  the  two  Newmans  by 
their  attorneys  had  filed  in  the  Supreme  Court  against 
the  appeal  from  the  judgment  they  had  already  with 
brazen  impudence  set  up  their  corrupt  plot  to  influence 
the  Supreme  Court.  It  had,  therefore,  become  abso- 
lutely necessary  to  exhibit  their  plot  in  its  true  char- 
acter. I,  therefore,  prepared  the  brief  as  I  had  resolved 
to  do,  and,  as  a  part  of  it,  exhibited  properly  the  cor- 
rupt and  wicked  contrivance  of  Justice  Harrison,  the 
two  Newmans  and  their  confederates. 

A  feature  of  the  brief  worthy  of  particular  notice  is 
the  complete  proof  which  it  furnishes  that  its  author 
was  utterly  unaware  that  he  was  incurring  any  danger. 
This  may  be  seen  in  the  very  sentences  quoted  in  the 
disbarment  judgment,  even  with  the  shameful  garbling 
to  which  they  are  there  subjected.  It  was  of  course  to 
be  assumed  that  Justice  Harrison  would  not  sit  in  the 
case.  The  language  of  the  brief  is  full  and  abundant 
proof  that  its  author  had  a  supremely  innocent  confi- 
dence that  the  Justices  who  would  actually  take  part  in 
the  decision  would  be  honest  men,  and  that  they  would 
be  moved  by  the  feelings  of  honest  men.  He  was 
utterly  unsuspicious  that  they  were  in  fact  false,  arbi- 
trary, corrupt  judges,  and  corrupt  agents  and  tools  of 
the  gigantic  combination  of  corporations  called  The 
Southern  Pacific  Company,  and  their  allies,  a  powerful 
and  unscrupulous  tyranny,  holding  the  State  in  their 
grasp,  and  engaged  in  overriding  the  constitution  and 


79 

laws,  in  absorbing  the  wealth  of  the  people,  and  grind- 
ing them  down  to  slavery. 

Among  the  grounds  of  the  case  in  which  the  brief 
was  filed — grounds  which  were  stated  and  argued  in 
the  brief — were  the  following : 

(i)  That,  by  reason  of  the  mental  condition  of  Mr. 
Levinson  when  the  partnership  articles  were  signed, 
and  the  conduct  of  the  two  Newmans,  the  partnership 
articles  were  not  binding  on  Mr.  Levinson,  and  that 
there  were  therefore  no  partnership  articles  of  the  firm. 
This  was  a  turning  point  in  the  case,  for  the  secret 
transfer  made  by  the  executor  to  the  Newmans  on  Sep- 
tember 6,  1890,  could  be  upheld,  if  at  all,  only  because 
authorized  by  the  alleged  partnership  articles. 

(2)  Another  ground  was  that  the  document  produced 
by  the  Newmans  as  the  articles  of  partnership,  failed 
to  state  any  price  or  any  means  of  arriving  at  a  price 
for  which,  after  Mr.  Levinson's  death,  they  might  take 
his  interest  in  the  firm,  and  that  for  this  reason  the 
document  was  not  a  contract  and  did  not  authorize 
them  to  take  their  deceased  partner's  interest  or  any 
transfer  of  it  to  them. 

(3)  Still  another  ground  was  that  the  inventory  and 
appraisement  made  by  the  Newmans  was  never  accepted 
by  the  dead  partner's  family  as  correct  in  any  particular. 

(4)  Another  ground  urged  for  the  plaintiff  was  that 
in  respect  to  that  transfer,  the  executor  and  Ralph  C. 
Harrison  were  the  fraudulent  confederates  of  the  two 
Newmans. 

(5)  Another  ground  was  placed  upon  the  rule  of  law, 
which  was   applied    and   illustrated   with    remarkable 


8o 

clearness  by  the  English  House  of  Lords  in  1853  in  the 
case  oi  Egerton  vs.  Earl  Brownlow  4  H.  L.  C.  235,  and 
which  may  be  fairly  stated  thus:  If  parties,  anticipat- 
ing that  a  certain  matter  may  possibly  come  before  a 
tribunal  for  a  decision,  and  wishing  that,  in  case  such 
a  contingency  should  happen,  the  decision  should  be 
in  their  favor,  so  arrange  the  matter  that  the  tribunal 
cannot  decide  it  contrary  to  their  wishes,  without  great 
and  special  injury  to  a  person  standing  in  a  position  of 
near  and  close  friendship  to  the  tribunal,  the  fact  that 
they  so  arrange  the  matter  is  a  contrivance  to  put  an 
'^embarrassment,"  a  ''pressure"  upon  that  tribunal  to 
influence  that  decision  improperly;  and  that  for  that 
reason  the  transaction  so  contrived  is  void  on  the 
ground  of  "public  policy."  We  had  seen  the  foul  con- 
trivance so  triumph  in  the  Superior  Court  as  to  give 
the  Newmans  even  the  $66240  which  they  avowed 
belonged  to  their  dead  partner's  estate.  We  had  seen 
the  villainous  scheme  make  actual  outlaws  of  Mrs. 
Levinson  and  her  daughters  in  the  Probate  Department 
of  the  Superior  Court.  As  already  stated,  it  had 
already  been  set  up,  in  the  brief  filed  for  the  Newmans 
on  the  appeal  from  the  judgment,  to  be  used  in  the 
same  way  in  the  Supreme  Court.  It  was  likely  to  be 
worked  with  even  greater  effect  in  the  Supreme  Court 
unless  the  Justices  should  not  onlv  be  honest  men,  but 
should  see  plainly  the  real  character  of  the  villainous 
scheme.  The  brief  cited  the  ruling  in  Egerton  vs. 
Earl  Brownlow^  just  stated,  and  asked  for  an  applica- 
tion of  the  rule  of  law  there  applied,  that  any  transac- 
tion that  involves  an  attempt  to  put  an  improper  influ- 
ence upon  official  action  is  illegal  and  void.  The  brief 
urged  that  the  principle  was  of  especial  importance  in 


8i  : 

respect  to  courts  of  justice,  and  stated  the  well-kuown 
ground  of  the  principle,  namely,  that  unless  such 
attempts  are  held  illegal,  courts  of  justice  may  be  cor- 
rupted— no  particular  court  was  referred  to,  nor  any 
particular  case;  only  the  general  truth  was  stated. 
And  since  Mr.  Harrison  had  become  a  most  intimate 
friend  and  daily  close  associate»of  long  standing  with 
the  Justices  by  whom  the  case  would  have  to  be  decided, 
and  almost  identified  with  them — the  very  situation 
which  he  and  his  confederates  had  foreseen  and  for 
which  they  had  laid  their  plan  of  corruption — the  brief 
sought  to  caution  them  against  the  wrongful  influence 
so  contrived. 

The  decision  in  the  case  of  Egerton  v.  Earl  Brown- 
low^  4  H.  L.  C.  235,  was  that  certain  provisions  in  a 
will  were  unlawful  because  they  embodied  just  such 
a  corrupt  contrivance.  The  case  was  as  follows  :  The 
testator  had  died  in  1823,  leaving  an  estate  of  two  mill- 
ion pounds  in  value.  He  had  cherished  a  wish  to  have 
the  English  Sovereign  create  a  dukedom  or  marquisate 
of  Bridgewater  and  bestow  it  upon  a  member  of  his 
family,  and  to  have  the  bulk  of  his  fortune  go  to  sup- 
port the  desired  dignity.  In  his  will  he  gave  his  estate 
to  be  held  by  trustees  until  certain  branches  of  his 
family  should  have  enjoyed  a  support  out  of  its  income, 
and  then  to  one  Lord  Alford,  a  relative  of  the  testator. 
This  Lord  Alford  already  held  one  of  the  lower  dig- 
nities in  the  English  Peerage,  and  at  the  testator's 
death  was  a  child  of  twelve  years.  The  two  provisions 
of  the  will  were,  first,  that  if  before  the  end  of  five 
years  after  the  estate  should  come  to  Lord  Alford  he 
did  not  become  Duke  or  Marquis  of  Bridgewater,  the 
estate  should  be  taken   from  him  and  go  to   another 


82 

branch  of  the  testator's  family  ;  and,  second,  that  it 
Lord  Alford  should  not  become  Duke  or  Marquis  of 
Bridgewater,  the  estate  should  not  go  to  his  heir, 
but  to  a  certain  distant  branch  of  the  family.  The 
will  also  provided  for  trustees  to  have  its  provis- 
ions fulfilled.  Lord  Alford  died  in  1851,  and  no 
dukedom  or  marqui^te  of  Bridgewater  was  ever 
created  or  even  asked  for.  The  House  of  Lords  de- 
cided that  the  two  provisions,  in  the  will  were  illegal 
and  void  because  they  constituted  a  scheme  on  the  part 
of  the  testator  to  put  a  corrupting  pressure  upon  the 
English  Sovereign  to  create  a  dukedom  or  marquisate 
of  Bridgewater  and  bestow  it  upon  Lord  Alford, 

The  House  of  Lords  based  its  decision  on  the  fact 
that  a  dignity  in  the  English  Peerage  ought  to  be 
created  and  bestowed  solely  from  motives  of  the  public 
good  and  of  merit  and  merit  alone  in  the  individual  to 
be  promoted,  that  Lord  Alford  (and,  after  his  death , 
his  heir)  as  a  member  of  the  Peerage  was  likely  to  be 
on  terms  of  intimacy  and  friendship  with  the  Sovereign, 
that  the  Sovereign  would  therefore  be  likely  to  feel  a 
desire  to  save  Lord  Alford  (or  his  heir,  as  the  case 
might  be)  from  the  danger  of  losing  an  estate  worth 
two  million  pounds,  and  that  the  two  provisions  of  the 
will  were  therefore  a  cunning  device  of  the  testator  to 
put  upon  the  English  Sovereign  an  improper  influence 
to  create  and  bestow  a  desired  dignity,  and  were  '*  an 
indignity,  an  insult"  to  the  office  of  the  Sovereign. 
The  House  of  Lords  decided  the  case  upon  a  well- 
settled  principle  of  law,  namely,  that  any  transaction 
which  involves  an  attempt  to  put  an  improper  influ- 
ence upon  official  action  is  illegal  and  void.  In  decid- 
ing  that   case   the    House  of  Lords    used  strong  and 


85 

criminatory  language,  saying,  among  other  things : 
By  the  Lord  Chief  Baron  (pp.  153,  154): 

"  It  was  the  object  '^"  *  of  the  testator  by 
this  condition  to  endeavor  to  obtain  a  renewal  of 
the  peerage  in  his  family.  *  *  *  With  this 
view  he  created  this  strong,  powerful  and  danger- 
ous pecuniary  interest  to  obtain  the  peerage — an 
interest  which  might  very  possibly  lead  to  un- 
worthy attempts  to  obtain  it.  He  prescribed  the 
end  and  he  furnished  the  means,  and  he  set  no 
limit  or  bounds  to  the  use  of  them ;  and  it  is  im- 
possible, I  think,  to  doubt,  that  he  intended  this 
condition  to  operate  upon  the  mind  of  the  Sov- 
ereign or  the  minds  of  those  who  advise  the 
Sovereign  (and  expected  it  would  or  might  do  so), 
to  grant  the  peerage  by  reason  or  on  account  of 
the  conditions,  and  from  motives  other  than  those 
which  alone  ought  to  operate,  viz  :  the  public 
good,  and  the  merits  of  the  individual  to  be  pro- 
moted, and  the  cause  of  his  promotion.  I  am  of 
opinion  that  it  was  not  competent  to  the  testator 
so  to  deal  with  his  property." 

By  Lord   Lyndhurst  (p.  163): 

''  It  is  admitted  that  any  contract  or  engagement 
having  a  tendency,  however  slight,  to  affect  the 
administration  of  justice,  is  illegal  and  void.  The 
character  of  the  Judge,  however  upright  and  pure, 
does  not  vary  the  case." 

By  Lord  St.  Leonards  (p.  240): 

'*  And  your  Lordships  have  shown  by  your 
decision  in  a  case  that  was  decided  lately  by  this 
House,  that  a  Judge  with  the  smallest  interest  was 
incapable  of  trying  a  cause ^  not  because  anybody 
supposed  that  he  would  be  influenced  (nobody  sup- 
posed so),  but  because  the  principle  is,  that  a  man 


84 

shall  not  have  an  interest  in  a  matter  in  which  he 
is  to  decide.  You  must  take  the  general  principle. 
But  it  is  said  by  the  learned  Judges,  'Yes,  that  is  a 
principle  of  law.'  No  doubt  it  is,  but  upon  what 
was  that  principle  founded  ?  Does  an^^  man 
doubt  that  it  was  founded  upon  public  polic}^  ?" 

By  Lord  Truro  (p.  203): 

"My  Lords,  my  opinion  has  been  founded  upon 
what  I  firmly  believe  is  the  just  result  of  ni}-  ex- 
perience of  the  present  state  of  the  political  com- 
munity which  must  be  subjected  to  the  operation 
of  the  proviso  in  question,  and  I  cannot,  when  per- 
forming the  solemn  duty  of  a  judge,  deny  or  reject 
that  experience  in  order  to  adopt  a  sentime7ital  theory 
of  purity^  which  in  truth,  is  not  applicable  to  the  pre  s- 
efit^  and  as  to  which  I  doubt  whether  it  was  applica- 
ble to  any  former^  or  zvill  be  applicable  to  any  fut- 
ure period  of  the  history  of  this  country  T 

By  Lord  St.  Leonards  (pp.  235-6): 

"I  cannot  help  thinking  that  there  is  a  great 
deal  in  the  argument  which  was  addressed  to  us 
from  the  bar,  as  to  the  embarrasment  which  such 
a  provision  as  this  would  create  in  the  Crown. 
Constitutionall}^  speaking,  I  will  not  on  this  occa- 
sion separate  the  Crown  from  its  ministers,  but  I 
will  consider  the  Crown  acting  in  the  usual  way,  by 
responsible  ministers.  Then  observe  what  it  is 
that  is  desired.  A  particular  dignity  is  pointed 
out,  and  particular  limitations  of  that  dignity  are 
chalked  out,  and  there  is  \X\\s  pressure  at  least  put 
upon  the  Crown ^  that  a  case  of  compassion  is 
raised.  Suppose  Lord  Alford  was  an  infant  when  the 
testator  made  his  will  and  provided  for  his  infancy. 
Suppose,  for  example,  the  estate  to  have  come  to  the 
infant  Lord  Alford,  and  suppose  Lord  Brownlow  to 
have  died,  and  the  Earldom  of  Brownlow  to  have 


85 

descended  to  Lord  Alford,  whilst  he  was  an  infant, 
then  comes  the  clause  that  if,  within  five  years  he 
did  not  obtain  the  dignity,  his  estate  should  go 
over  to  others — an  estate  worth  two  millions  of 
money.  Now^  conceive  the  pressure  that  is  put 
upon  the  Crowfi^  the  case  of  compassion  which  is 
made  out.  Will  the  Crown  refuse  the  dignity  to 
this  family  ?  Will  it  refuse  one  step  more  in  the 
peerage,  knowing  that  the  consequence  of  the  re- 
fusal will  be  that  this  vast  estate  will  go  from  the 
person  for  whom  it  was  provided  in  the  first  in- 
stance, and  thus  the  object  of  the  testator's  bounty 
be  frustrated?  I say^  my  Lords^  that  it  is  an  in- 
dignity^ a7i  tnsult  offered  to  the  Crown,  *  ^-  * 
Suppose  I  were  to  imagine  that  two  sovereigns 
had  been  compelled,  in  consequence  of  this  very 
provision,  to  refuse  a  step  in  the  peerage  to  give 
effect  to  this  instrument,  it  would  be  no  great 
stretch  of  the  imagination;  and  yet  what  can  be 
more  painful  when  you  look  at  the  great  pressure 
upon  the  party  ?  It  is  a  dangerous  power  to  be 
placed  in  the  hands  of  any  man,  with  such  a  temp- 
tation to  use  it — a  temptation  almost  irresistible. 
God  forbid  that  I  should  say  there  are  not  men 
who  could  resist  it;  but  the  temptation  is  more 
than  you  are  justified  in  laying  before  a  man — 
more  than  you  are  justified  in  exposing  him  to. 
You  are  not  justified  in  raising  so  fearful  an  issue. 
*  *  *  Then  what  would  have  been  the  position 
of  the  Crown  ?  Here  is  a  young  nobleman — an 
Earl — to  whom  this  property  has  been  left,  as  a 
child,  wholly  guiltless  of  any  neglect  whatever, 
belonging  to  an  ancient  stock  and  a  noble  family, 
and  the  Crown  has  the  means,  by  giving  him  only 
one  more  step  in  the  peerage,  to  secure  to  him  an 
estate  of  70,000/.  a  year.  My  Lords ^  it  is  a  posi- 
tion in  which  no.  subject  has  a  right  to  place  the 
Crown.  *  *  *  Dignities  ought  to  come  from 
merit,  and  from  merit  alone  .^^ 


86 

By  Lord  St.  Leonards  (at  p.  234): 

"A  more  unblushing  and  audacious  disposition 
of  property  never  was  made  by  man;  and  that  the 
parties  entitled  under  it  should  dare  to  go  into  a 
Court  of  Equity  and  ask  for  the  execution  of  that 
trust,  does  show  a  state  of  things  sufficient  to 
alarm  us."^  *     * 

This  decision  of  the  case  of  Ege7'to7i  v.  Earl  Brown- 
low  was  cited  and  fully  and  clearly  stated  it  the  brief; 
and  the  passages  of  the  decision  quoted  above,  and 
others  to  the  same  effect,  were  quoted  in  the  brief. 

The  decision  in  Egerton  vs.  Earl  Brownlow^  4 
H.  L.  C.  235,  just  stated,  although  made  by  an  English 
court,  is,  as  every  American  lawyer  knows,  an  author- 
ity upon  the  law  of  California.  And  this  was  ex- 
pressly decided  and  declared  in  1886  in  a  great  case  by 
the  Supreme  Court  of  California.* 

The  decision  in  Egerton  vs.  Earl  Brown  low  w2iS  then, 
as  all  the  Justices  of  the  Supreme  Court  of  California  well 
knew,  properly  cited  in  the  brief.  We  may,  therefore, 
properly  compare  the  case,  as  it  stood  when  the  brief 
was  filed,  with  that  case  and  the  decision  there  made. 


I.    The  Similarity  in  the  Decisions  Sought  to  be  Influenced. 

In  the  case  of  Egerton  vs.  Earl  Brownlozv^  the  pos- 
sible decision  which  the  maker  of  the  will  had  in  mind 
was  a  decision  of  the  question  which  might  at  some 
time  arise  whether  a  dukedom  or  marquisate  should  be 
created  and  conferred  upon  Lord  Alford. 

In  the  case  here,  the  possible  decision  which  the 
persons  concerned  in  the  transfer  to  the  Newmans  had 


'■jLux  vs.  Haggin,  6g  Cal.  J79. 


87 

in  mind,  was  a  decision  of  the  question  which  might  at 
some  time  arise,  whether  that  transfer  should  be  upheld 
so  as  to  give  the  deceased  partner's  interest  in  the  firm 
to  the  two  Newmans. 

In  each  case,  the  possible  decision  contemplated  was 
that  of  a  public  official. 

In  each  case,  the  possible  decision  was  one  involving 
the  exercise  of  judgment. 

In  both  cases,  the  character  of  the  possible  decision 
planned  for  was  the  same.  And  in  deciding  the  case 
of  Egerton  vs.  Earl  Brownlow^  the  Judges  treated  the 
possible  decision  which  the  corrupt  scheme  was  con- 
trived to  influence,  as  being  of  the  same  nature  as  the 
decision  of  a  lawsuit.  They  said,  for  instance,  *'  Any 
contract  or  engagement  having  a  tendency,  however 
slight,  to  affect  the  administration  of  justice,  is  illegal 
and  void."  And  the}'  used  many  other  similar  expres- 
sions. 

In  this  particular,  then,  the  case  here  is  substantially 
tlie  same  as  that  of  Egerton  vs.  Earl  Brownlow. 


2.     In  the    Case  Here,    the    Probability    that    the    Decision 
Would  Be  Called  for  was  the  Greater. 

In  the  case  of  Egerton  vs.  Earl  Brownlow^  when  the 
will  was  made  Lord  Alford  was  but  a  child.  He  might 
die  or  might  (as  turned  out  to  be  the  case)  never  ask 
for  a  dukedom  or  marquisate,  and  so  the  question 
might  never  arise  and  the  decision  might  never  be 
made  or  called  for.  And  it  turned  out  that  the  ques- 
tion never  did  arise,  and  the  decision  never  was  made 
or  called  for. 

In  the  case  here,  as  all  the  persons  concerned  in  the 


88 

transfer  to  the  two  Newmans  well  knew,  the  question 
was  sure  to  arise.  The  only  persons  having  any  inter- 
est to  oppose  the  transfer  were  the  three  women,  the 
deceased  partner's  family.  They  had  announced  their 
extreme  opposition  to  any  such  transfer,  and  solely  for- 
that  reason  had  employed  an  attorney,  and  were  under- 
going deprivation  of  their  means  of  daily  sustenance. 
In  this  particular,  then,  the  case  here  is  far  clearer 
and  stronger  than  was  that  of  Egerton  vs.  Earl  Brown- 
low. 


3.     In    the   Case    Here,    t&e    Corrupting    Influence  Was  the 
Same  in  Kind  and  Far  Greater  in   Degree. 

In  the  case  of  Egerton  vs.  Earl  Brownlow^  the  cor- 
rupting influence  contrived  by  the  maker  of  the  will 
would  consist  only  of  the  fact  that  the  Crown,  if  asked 
to  create  the  dukedom  or  marquisate  and  to  confer  it 
upon  Lord  Alford,  would  see  that  a  refusal,  while  it 
would  not  enrich  the  Crown,  would  subject  Lord  Alford 
to  a  danger  of  great  pecuniary  loss,  or  would,  at  least, 
subject  his  heir  to  a  danger  of  not  inheriting  the  estate. 
In  deciding  the  case,  the  Judges,  speaking  of  this,  said  : 

"^  *  "  there  is  this  pressure  at  least  put  upon 
the  Crown,  that  a  case  of  compassion  is  raised. 
*  *  Now,  conceive  the  pressure  that  is  put  upon 
the  Crown,  the  case  of  compassion  which  is  made 
out.  *  *'^''  I  say,  my  Lords,  that  it  is  an  indignity, 
an  insult  offered  to  the  Crown." 

In  the  case  here,  the  corrupting  influence  contrived 
by  those  concerned  in  the  secret  transfer  to  the  New- 
mans would  cousist  in  the  fact  that  the  Judges,  if  asked 
to   sustain    the   transaction,  would   see  that  a  refusal 


89 

would  subject  Ralph  C  Harrison,  one  of  the  Justices 
of  the  Supreme  Court  of  California,  to  such  certain 
loss  and  injury  as  results  from  being  by  the  judgment 
of  a  Court,  shown  to  be  an  exceedingly  base,  vile^ 
treacherous,  depraved,  lying  scoundrel. 

It  is  of  course  manifest  at  a  glance  that  such  a  result 
would  be  to  subject  Mr.  Harrison  to  great  loss  and  in- 
jury. And  this  has  been  expressly  confessed  by  the 
Justices  themselves,  his  associates,  in  the  judgment  of 
disbarment.  Take,  for  example,  the  following  expres- 
sions: 

*  *  "'  An  attempt  to  influence  a  Judge  through 
fear  of  physical  injury  is  no  graver  offense  than 
such  an  attempt  against  his  reputation.  A  high- 
spirited  man  might  have  perfect  physical  courage 
and  yet  might  possibly,  despite  all  his  efforts 
against  it,  be  to  some  extent  insensibly  affected  by 
dread  of  the  loss  of  his  reputation  and  good  name.'^"^* 

And  such  loss  and  injury  \vould  necessarily  be  oj  a 
a  character  most  repugnant  to  the  Justices,  Mr.  Harri- 
son's associates,  to  inflict.  Such  a  judgment  would 
necessarily  implicate  and  point  at  him  as  an  exceedingly 
dishonest  and  treacherous  and  corrupt  person.  It 
would  necessarily  wound  deeply  their  friendly  feelings 
for  him  into  which  he  would  have  had  so  great  oppor- 
tunity to  ingratiate  himself.  It  would  deeply  wound 
their  passions  for  the  privileges  of  their  corps.  It 
would  be  opposed  by  their  sense  of  the  loss  of  confi- 
dence in  and  respect  for  the  Court  if  he  should  con- 
tinue to  be  a  member  of  it,  and  by  their  sense  of  the 
loss  of  respect  for  themselves  that  would  ensue  if  they 
should  continue  to  be  members  of  the  Court  along 
with  him,  and,  most  of  all,  by  the  enormous  corrupting 

*  See  the  Appendix,  p.  27. 


90 

influence   of  the   ^reat   organization    of    corporations, 
The  Southern  Pacific  Company  and  that  of  their  allies. 
Thomas  Jefferson,  in  his  Autobiography^  says  of  the 
judiciary: 

"  I  deem  it  indispensable  to  the  continuance  of 
this  government,  that  they  should  be  submitted  to 
some  practical  and  impartial  control.  *  *  It  is 
not  enough  that  honest  men  are  appointed  judges. 
All  know  the  influence  of  interest  on  the  mind  of 
man,  and  how  unconsciously  his  judgment  is 
warped  by  that  influence.  To  this  bias  add  that 
of  the  esprit  de  corps^  *  *  and  how  can  we  expect 
impartial  decisions  ?'' 

And  it  is  proper  to  bear  in  mind  that  in  the  case  here 
the  overwhelming  strength  of  the  corrupting  influence 
has  been  proved  b}^  the  result. 

In  this  particular,  then,  the  case  here  is  far  stronger 
than  was  that  of  Egerton  vs.  Earl  Brownlow. 


4.     The  Channel  For  the  Corrupt  Influence  Was  flore  Sure 
to  Exist  in  the  Case  Here. 

In  the  case  of  Egerton  vs.  Eat  I  Brownloxv^  the  con- 
nection through  which,  if  at  all,  the  corrupting  influ- 
ence was  to  be  exerted,  was  only  a  connection  that 
might  possibly  exist,  namely,  that  the  person  of  the 
Crown  might  know  Lord  Alford  (or  his  heir,  as  the 
case  might  be)  and  feel  friendly  toward  him  (or,  at 
least,  feel  friendly  toward  his  heir). 

In  the  case  here,  the  Judges  to  decide  the  case 
would  be  sure  to  know  Ralph  C.  Harrison,  and,  before 
the  case  could  reach  them,  he  would  have  every  oppor- 
tunity, from  being  in  their  company  and  in  the   most 


91 

intimate  relations  with  them  for  years  and  almost 
every  day  in  the  year,  to  secure  their  firmest  and 
warmest  friendship. 

In  this  particular,  then,  the  case  here  is  enormously 
clearer  and  stronger  than  was  that  of  Egerton  vs.  Earl 
Brown  low. 


5.     The     Moral     Depravity     Was    Beyond     All    Comparison 
Greater   in  the  Case  Here. 

In  the  case  o^  Egerton  vs.  Earl  Brow7tlow,\.\\^\\\2i\i^r 
of  the  will  held  no  relation  of  trust  or  confidence 
toward  any  person  to  be  benefited  or  injured  by  the 
possible  decision  for  which  the  corrupting  influence 
was  prepared;  and  no  injur}-  was  to  result  to   any  one. 

In  the  case  here,  all  the  persons  concerned  in  the 
secret  transfer  of  the  deceased  partner's  interest  to  the 
two  Newmans  held  relations  of  trust  and  confidence 
toward  the  deceased  partner's  family.  The  executor 
was  trustee  for  them,  and  Ralph  C.  Harrison  "  stood 
in  the  same  confidential  relation."  (See  Vol.  99,  Cal. 
Reports,  p.  56).  The  two  Newmans  were  trustees  of 
the  deceased  copartner's  interest  in  the  firm,  and  M.  S. 
Eisner  was  attorney  for  them  in  that  capacity.  They 
were  all  engaged  in  breach  of  trust. 

Besides,  the  persons  toward  whom  they  held  those 
confidential  relations  were  women,  an  aged  widow  and 
her  daughters,  the  family  of  the  deceased  copartner  of 
the  two  Newmans.  The  d3ang  partner  had  in  his  will 
specially  appointed  Benjamin  Newman  a  trustee  to  pro- 
tect his  "  beloved  mother."  They  were  engaged 
secretly,  as  was  becoming  in  so  vile  a  crime,  in  defraud- 
ing and  robbing  the  helpless  family  of  a  dead  friend 


92 

and  in  a  plot  to  corrupt  againt  them  the  courts  of 
justice.  Could  there  be  imagined  any  deeper  or 
meaner  or  viler  or  baser  depth  of  human  depravity  ? 

In  this  particular,  then,  the  case  here  is  beyond  all 
comparison  stronger  than  was  that  of  Egerton  vs. 
Earl  Brown  low. 


(6)     The  Proof  of  the  Corrupt  Intention  is  Beyond  all   Com- 
parison Greater  in  the  Case  Here. 

In  the  case  of  Egerton  vs.  Earl  Brownlow^  the 
evidence  of  the  intention  of  the  maker  of  the  will  con- 
sisted of  the  bare  fact  of  the  two  provisions  in  the  will 
(stated  on  pp.  81-2  above)  and  their  natural  tendency  so 
far  as  to  be  seen  only  by  the  light  of  reason. 

In  the  case  here,  the  natural  tendency  of  the  trans- 
action was  the  same  in  kind  as  was  the  case  there, 
and,  as  has  been  shown,  was  far  more  manifest  and 
was  enormously  stronger  in  degree.  Indeed,  it  was  so 
manifest  that  those  concerned  in  the  secret  transfer  to 
the  two  Newmans  must  needs  have  been  inconceivably 
simple  not  to  have  seen  the  inevitable  effect  of  what 
they  were  about.  But  there  is  the  strongest  additional 
evidence — evidence  of  which  the  case  of  Egerton  vs. 
Earl  Brownlow  had  no  counterpart — that  in  the  secret 
transfer  of  the  deceased  partner's  interest  in  the  firm 
to  the  two  Newmans  on  September  6,  1890,  Ralph 
C.  Harrison,  M.  S.  Eisner,  the  executor  and  the  two 
Newmans  knowingly  and  intentionally  contrived  a 
scheme  to  corrupt  the  administration  of  justice. 

Typewriting  machines  wefe  at  the  time  in  general 
use  and  typewriters  generally  employed.  Why,  then, 
were  the  papers  of  transfer  put  in  the  handwriting  of 


93 

Ralph  C.  Harrison  ?   Why,  to  show  and  emphasize  the 
fact  that  it  was  Ralph  C.  Harrison's  transaction. 

M.  S.  Eisner  was  present.  Why  were  not  the 
papers  snbscribed  by  M.  S.  Eisner  as  the  witness  ? 
Why  by  Ralph  C.  Harrison  instead?  There  is  the 
same  answer.  Mr.  Eisner  w^as  not  candidate  for  Jus- 
tice of  the  Supreme  Court.  Mr.  Eisner  was  not  to 
occupy  the  influential  office  of  Justice  of  the  Supreme 
Court. 

Again,  how  did  it  happen  that  the  sum  for  which 
the  transfer  was  made  was  less  by  $593.18  than  the 
*'  balance  sheet"  of  the  Newmans  showed? 

Why  was  not  a  word  dropped  about  so  important  a 
transaction  ?  Wh}-  were  not  the  deceased  partner's 
family,  the  only  persons  interested  to  oppose  the  trans- 
fer— why  were  they  not  told  about  it  ?  Why  was  not 
their  especially  employed  attorney  informed  ?  Why 
did  "  Mr.  Justice  Harrison  "  use  his  promise  to  that 
attorney  only  as  an  additional  cloak  to  the  secrecy  ? 
Is  not  all  that  secrecy,  in  such  a  case,  proof  of  corrupt 
and  guilty  intention? 

Then,  too,  there  stands  the  fact  that,  only  a  little 
before,  in  July,  1890,  Ralph  C.  Harrison  was  in  the 
Probate  Court  collusively  assisting  the  two  Newmans 
in  an  effort  to  obtain  froni  the^Court,  by  deception,  an 
order  directing  the  executor  to  transfer  the  deceased 
partner's  interest  in  the  firm  to  them  on  the  very  same 
terms  as  those  of  the  secret  transfer  made  on  Septem- 
ber 6th. 

And  there  is  the  effort  of  "  Mr.  Justice  Harrison  '' 
in  December,  1890,  to  induce  the  Probate  Court  to  rule 
against  the  deceased  partner's  estate  on  the  question  of 
the  good  will  of  the  firm's  business. 


94 

There,  too,  is  the  proof  that  from  early  in  July, 
1890,  the  Newmans,  on  the  wicked  advice  of  Ralph  C. 
Harrison,  relentlessly  pursued  toward  their  deceased 
partner's  family  the  plan  of  withholding  their  means 
of  subsistence  so  as  to  drive  them  to  need  and  hold 
them  in  need  until  the  siege  should  compel  them  to 
consent  to  such  a  transfer.  There  is  the  proof  that 
the  executor  assisted  in  that  siege  of  penury  upon  the 
deceased  partner's  family  for  more  than  fourteen 
months  and  until  the  Probate  Court  ordered  the  partial 
distribution. 

There,  too,  is  the  proof  that  on  March  5,  1890,  the 
Newmans,  on  Ralph  C.  Harrison's  advice,  trapped  the 
deceased  partner's  family  into  signing  the  paper  waiv- 
ing the  presence  of  a  representative  while  the  New- 
mans made  their  inventory  and  appraisement. 

There,  also,  is  the  proof  of  the  continual  deceit  prac- 
ticed by  Ralph  C.  Harrison  for  the  benefit  of  the  two 
Newmans.  There  is  the  refusal  of  the  executor  in 
November,  1891,  to  tell  what  had  been  done.  There 
is  the  fact  that  the  Newmans  procured  for  the  executor 
a  bond  when  his  removal  was  demanded.  And  there 
is  his  prompt  offer  to  resign  and  his  actual  resignation 
under  charges  of  being  the  fraudulent  confederate  of 
the  two  Newmans. 

And  there  is  the  cry  raised  by  E.  R.  Taylor,  '^  It  is 
in  Judge  Harrison's  handwriting.'' 


But  if  any  one  question  whether  Ralph  C  Harrison 
was  capable  of  the  most  base  and  corrupt  intention, 
let  the  bare  fact  of  the  secret  transfer  of  the  deceased 
partner's  interest  to  the  two  Newmans  on   September 


95 

6,  iSgo,  be  considered.  It  was  the  transfer  of  the 
whoje  property  and  estate  of  the  dead  partner's  family, 
Ralph  C.  Harrison's  clients.  To  defend  it,  they  had 
employed  an  attorney  to  act  with  Mr.  Harrison.  Mr. 
Harrison  had  given  his  express  promise  to  have  no 
step  taken  without  notice.  Under  such  circumstances, 
if  Ralph  C.  Harrison  had  been  an  honest  man,  if  he 
had  not  been  capable  of  the  utmost  and  deepest  perfidy 
and  baseness,  it  would  have  been  utterly  impossible 
for  him  to  advise  and  take  part  in  such  an  act. 

Cicero,  in  the  oration  against  Verres,  says  that  the 
Roman  senate  "thought  it  a  robbery,  not  a  purchase, 
when  the  seller  was  not  allowed  to  sell  on  his  own 
terms."  Is  ;t  not  far  more  criminal,  adding  the  viler 
element  of  theft,  of  stealing,  to  go  still  further  and  not 
to  allow  the  seller  even  to  know  that  his  property  is 
being  transferred  away  and  given  over  to  another? 
And  when  all  this  is  done  under  a  promise  to  allow  no 
step  to  be  taken  without  notice,  there  is  added  the  ele- 
ment of  lying.  And  when  it  is  one's  own  clients 
whose  property  is  being  so  transferred  away,  there  is 
added  the  further  element  of  treachery.  And  when 
those  clients  are  women,  the  bereaved  and  unprotected 
family  of  a  dead  man,  there  is  the  quality  of  the  un- 
speakably vile  dastard.  And  when  it  is  all  done  under 
the  cloak  of  candidate  for  the  office  of  Justice  of  the 
Supreme  Court  of  the  State,  what  depth  of  crime  and 
villainy  and  baseness  is  not  reached  ?  And  that  was 
Ralph  C.  Harrison. 

A  comparison  of  this  case  with  that  of  Egerton  vs. 
Earl  Brownlow  shows  that  the  two  cases  are  identical 
in  principle;  but  that  the  case  here  is  out  of  all  com- 
parison clearer  and   stronger  than  that  case;  that  the 


96 

case  here  is  established  b\^  proof  which  is,  beyond  all 
comparison,  the  greater — indeed,  by  proof  amounting 
to  demonstration — and  that  the  case  here  is  of  a  deprav- 
ity, a  baseness,  a  treachery  and  an  unscrupulous  vil- 
lainy out  of  all  comparison  with  anything  that  ap- 
peared in  Egerton  vs.  Earl  Bi'ownlow. 

The  contrivance  held  illegal  in  the  case  of  Egej'ton 
vs.  Earl  Brownlow.,  and  the  plot  of  Justice  Harrison 
and  the  two  Newmans  and  their  confederates,  were 
each  plainly  the  same  in  principle  as  a  bribe — in  each 
the  contrivance  was  essentially  bribery  couched  in  a 
most  effective  form. 

In  1896  The  Southern  Pacific  Company  were  suing 
the  Board  of  Railroad  Commissioners  of  .California  in 
the  United  States  Circuit  Court  at  San  Francisco  for 
an  injunction  against  the  reduction  of  freight  charges 
upon  their  railroads.  One  ground  of  the  suit  was  that 
two  of  the  Commissioners  had  been  elected  upon  a 
party  platform  pledging  them  to  make  some  such  reduc- 
tion. The  contention  of  The  Southern  Pacific  Company 
was  that  that  pledge  was  essentially  a  bribe.  On  May 
19,  1896,  John  Garber,  one  of  the  counsel  of  The  South- 
ern Pacific  Company,  in  support  of  that  contention, 
said  to  the  United  States  Circuit  Court : 

*'  What  is  a  bribe  ?  I  speak  not  now  of  a  bribe 
in  the  grosser  sense  of  the  reception  of  a  money 
consideration  concerning  the  performance  of  judi- 
cial duty.  ^=  *  I  speak  of  what  is  a  bribe  in  its 
essence,  in  its  quality,  as  applied  to  matters  of  this 
kind.  Merely  and  simply  this  :  That  kind  of 
favor,  that  kind  of  affection,  that  kind  of  influence, 
that  kind  of  obligation,  which  tends  necessarily  to 
turn  the  official  away  from  the  judicial,  impartial 
and  proper  performance  of  his  duty." 


97 

The  Judges  who  decided  the  case  of  Egerton  vs.  Earl 
Brownlow  had  no  difficulty  in  perceiving  the  character 
of  the  transaction  there  in  question.  They  denounced 
it  as  an  "  indignity,  an  insult."  They  condemned  it 
and  destroyed  it  by  their  judgment.  They  were  out- 
spoken and  emphatic  that  "  any  contract  or  engage- 
ment having  a  tendency,  however  slight,  to  affect  the 
administration  of  justice  is  illegal  and  void."  They 
were  amazed  at  the  temerity  that  had  dared  to  ask  for 
any  other  result.  They  saw  in  that  temerity  the  indi- 
cation of  an  alarming  state  of  things.  See  their 
language  quoted  above.  In  that  decision  there  is 
displayed  the  spirit  of  honest  men  of  uncorrupted 
judgments. 


The    Robbery    of    the    Three    Defenseless    Women    of  Their 

Inheritance. 

Ralph  C.  Harrison  had  joined  the  two  Newmans  as 
their  most  foul  and  vile  fellow  conspirator.  And  the 
law  (and  reason  also)  concerning  fellow  conspirators  is 
as  follows: 

"Every  person  entering  into  a  conspiracy  or 
common  design  already  formed  is  deemed  in  law 
a  party  to  all  acts  done  by  any  of  the  other  parties, 
before  or  afterwards,  in  furtherance  of  the  common 
design.'''^ 

''  Every  act  and  declaration  of  each  member  of 
the  confederacy,  in  pursuance  of  the  original  con- 
certed plan,  and  with  reference  to  the  common 
subject,  is,  in  contemplation  of  law,  the  act  and 
declaration  of  them  all.  It  makes  no  difference  at 
what  time  any  one  entered  into  the  conspiracy. 


►Greenl.  Ev.  Vol.  3,  Sec.  93. 


98 

Every  one  who  does  enter  into  a  common  purpose 
or  design  is  generally  deemed,  in  law,  a  party  to 
every  act  which  had  before  been  done  by  the  others, 
and  a  party  to  every  act  which  may  afterwards  be 
done  by  any  of  the  others  in  furtherance  of  such 
common  design."* 

The  rule  of  law  as  thus  stated  was,  for  the  benefit  of 
The  Southern  Pacific  Company,  rigorously  enforced  in 
1895  ^y  ^^^  United  States  District  Court  at  San  Fran- 
cisco in  the  criminal  prosecution  of  participants  in  the 
great  railway  strike  of  i894.t 

It  was  also  rigorously  enforced  in  December,  1894, 
by  the  United  States  Circuit  Court  for  the  Northern 
District  of  Illinois,  in  the  prosecution  and  conviction 
and  punishment  of  Debs  for  his  leadership  in  the  same 
strike.J 

Ralph  C.  Harrison  was,  therefore,  legally  as  well  as 
morally  responsible  for  the  entire  conspiracy  of  the  two 
Newmans,  and  the  case  against  them  was  a  plain  and 
simple  case. 

Consider  the  condition  of  their  sick  partner,  John 
Levinson,  as  shown  in  the  proof  set  out  on  pp.  9-10 
above  :  "  away  from  his  family  ";  ''  at  the  Lick  House  ''; 
"  confined  to  his  room  there  ";  "  afflicted  with  *  * 
Hypochondria,  *  *  a  disease  of  the  nervous  sys- 
tem and  of  the  brain  more  particularly  ";  "  his  condition 
bordered  very  closely  on  melancholia ";  "  and  melan- 
cholia is  insanity  ";  not  "  possible  for  him  to  investigate 
anything  at  that  time'';  '*  practically  destitute  of  will 
power  ";  "  condition  of  his  mind  very  bad  ";  ^'  without 
power  of  application  '';  *'  could  be  easily  led  to  do  any- 

*  Id.  Vol.  I.  Sec.  III. 

t  See  United  Stales  vs.  Cassidy  and  Mayne,  67  Fed.  Rep.  698. 

X  See  United  States  vs.  Debs,  64  Fed.  Rep.  764. 


99 

thing  ";  "  afflicted  with  great  despondency  and  a  tend- 
ency to  suicide  ";  "  unable  to  walk  without  support "; 
^'  always  threatening  suicide  because  he  supposed  he 
was  losing  his  mind ";  "  watched  that  he  might  not 
commit  suicide  ";  "  fully  convinced  that  he  was  about 
to  lose  his  mind";  "his  great  fear  was  that  lie  would 
become  insane  "  would  not  "  have  given  attention  to  a 
single  page  of  anything  or  *  *  read  through  a  page 
of  anything." 

It  was  while  Mr.  Levinson  was  in  the  helpless  con- 
dition shown  in  the  proof  just  quoted,  "  away  from  his 
family,"  and  shut  up  in  a  room  in  a  hotel,  that  the  two 
Newmans,  his  copartners,  secretly  got  a  lawyer  to 
draw  up  for  them  the  articles  of  partnership,  to  which 
they  then  secretly  got  their  sick  and  helpless  partner's 
signature,  and  which  upon  his  death  they  claimed  to 
give  them  the  right  to  take  his  entire  estate  at  a  valua- 
tion to  be  fixed  by  themselves  alone. 

Such  are  the  specimens  of  low  cunning  and  degraded 
baseness,  William  J.  Newman  and  Benjamin  Newman. 
They  are  brothers ;  they  are  of  one  and  the  same 
identical  breed.  But  it  happened  most  remarkably,  as 
if  from  the  interposition  of  Providence,  that  the  articles 
of  partnership  so  contrived  by  the  two  Newmans  failed 
to  state  a  price  or  any  means  of  arriving  at  a  price  for 
which  they  might  take  their  sick  partner's  interest  as 
soon  as  he  should  die,  and  for  this  reason  even  the 
language  of  the  articles  failed  to  give  them  any  such 
right. 

At  the  very  next  stock-taking,  after  the  two  New- 
mans thus  secretly  got  their  sick  and  helpless  partner's 
signatures  to  their  articles— -the  stock-taking  made  by 
the  Newmans  while  Mr.  Levinson,  sick  and  helpless, 


lOO 


was  in  Europe — the  two  Newmans,  by  means  of  those 
articles  of  partnership,  and  by  the  trick  of  reserving^ 
part  of  the  profits  as  interest  on  capital,  put  into  their 
own  pockets  the  sum  of  $206.53  out  of  Mr.  Levinson's 
share,  and,  as  they  themselves  avow,  still  another  sum 
of  $231.25  at  his  death.  And  while  Mr.  Levinson  was 
so  away  in  Europe,  sick  and  helpless,  the  two  Newmans 
also  used  his  capital  and  share  to  purchase  an  interest 
of  Buyer  &  Reich  in  the  business,  and  by  that  means 
took  $11,548. 76  from  him. 

Like  buzzards,  the  Newmans  began  upon  their  sick 
prey  as  soon  as  he  had  become  helpless ;  they  could 
not  wait  for  life  to  become  extinct. 

It  was  only  a  few  days  after  they  had  so  got  those 
articles  of  partnership  that  Benjamin  Newman  con- 
ducted to  the  room  in  the  Lick  House,  where  Mr. 
Levinson  was  confined,  the  lawyer  to  draw  up  his  will. 
Can  it  be  fairly  doubted  that  the  sick  partner,  who  was 
"  away  from  his  family  "  and  ''  could  be  easily  led  to  do 
anything,"  in  accepting  as  his  executor  one  who  turned 
out  to  be  the  tool  of  the  two  Newmans,  did  so  by  the 
procurement  of  the  Newmans  themselves  ? 

Cicero  says  that  the  Roman  senate  would  not  allow 
the  proconsuls  to  purchase  goods  in  the  provinces 
"  because  they  thought  it  a  robbery,  not  a  purchase, 
when  the  seller  was  not  allowed  to  sell  on  his  own 
terms."  Now,  consider  the  bare  fact  of  the  means  by 
which  the  two  Newmans  have,  after  their  co-partner's 
death,  seized  upon  and  forcibly  withheld  and  taken  as 
their  own,  his  interest  in  the  firm.  They  have  done  it 
privately,  without  authority  from  any  Court  or  Judge. 
They  have  taken  it  for  a  sum  determined  on  and  fixed 
by  themselves  alone  without  any  supervision  whatever. 


lOI 

They  have  done  it  against  the  known  and  strenuously 
expressed  wishes  of  the  three  defenseless  women  to 
whom  the  property  belongs.  They  have  done  it  with 
the  craftiest  and  most  studious  secrecy.  They  did  not 
show  or  offer  to  show  a  book  or  an  item  or  a  paper  to 
those  whose  property  they  were  taking.  They  have 
taken  it  by  force  and  craft,  deliberately  and  relentlessly 
taking  the  basest  advantage  of  the  necessities  and  dis- 
tress of  those  whose  property  they  were  taking. 

Was  it  not,  then,  a  robbery  ? 

Again,  consider  the  trifling  sum  allowed,  only  $20,- 
790.88  (and  even  that  paid  only  by  installments  run- 
ning through  a  year)  for  a  property  earning  more  than 
twelve  thousand  dollars  per  year  and  continually  grow- 
ing and  increasing  in  earning  capacity.  Even  before 
the  secret  and  "  unauthorized  and  void  "  transfer  of 
Mr.  Levinson's  interest  in  the  firm  to  the  Newmans 
was  discovered,  the  very  net  income  of  his  interest 
taken  in  and  pocketed  by  the  Newmans  had  amounted 
to  more  than  all  they  had  allowed  as  the  price  of  the 
property  itself? 

Was  it  not,  then,  a  great  robbery? 

The  testimony  of  William  J.  Newman  and  that  of  his 
chief  bookkeeper  are  in  the  record  of  the  case  in  the 
Supreme  Court,  and  are  discussed  in  the  plaintiff's 
brief;  and  each  of  them  is  there  shown  and  demon- 
strated to  be  a  crafty  but  rather  dull-witted  perjurer. 

Consider  the  making  of  the  inventory  and  appraise- 
ment of  the  assets  of  the  firm  by  the  Newmans  after 
Mr.  Levinson's  death.  It  was  made  by  the  Newmans 
alone,  without  any  supervision  whatever.  Within  a 
few  days  after  it  was  done  it  became  impossible  to 
know  whether  or  not  they  valued  all  the  goods  or  what 


I02 


values  they  set  down;  nor  has  a  particle  of  evidence 
about  it  been  produced.  What  reasonable  man  can  be- 
lieve that  that  inventory  and  appraisement  was  fair  ? 
What  man  would  be  willing  to  have  his  own  property 
taken  from  him  against  his  will  and  without  so  much, 
as  a  shadow  of  right  by  so  base  and  unscrupulous 
wretches  as  these  Newmans  are  proved  to  be,  and  upon 
their  own  inventorying  and  appraising  made  by  them 
with  the  knowledge  that  they  were  not  being  watched, 
that  their  intention  to  take  the  property  was  not  known 
and  that  within  a  few  days  it  would  be  impossible  to 
find  out  what  they  had  in  fact  done  ? 

While  the  Newmans  were  making  their  inventory 
and  appraisement,  it  occurred  to  them,  after  advising 
with  their  confederate  Ralph  C.  Harrison,  to  secure 
from  their  deceased  partner's  family  a  writing  which, 
the  Newmans  could  show  as  proof  that  those  whom 
they  were  despoiling  had  consented  that  they  might 
inventory  and  appraise  the  assets  without  supervision. 
They,  therefore,  prepared  the  writing,  the  language  of 
which  is  quoted  on  p.  23  above,  and  trapped  their  vic- 
tims into  signing  it.  And  is  it  not  another  event 
most  remarkable,  as  if  from  another  interposition  of 
Providence,  that  the  language  of  that  writing  both 
failed  to  state  any  such  consent  (for  it  only  said  that 
the  signers  did  not  desire  to  employ  any  third  person 
to  assist,  but  did  not  authorize  the  Newmans  to  do  any- 
thing or  agree  to  be  bound  in  anyway  by  what  the 
Newmans  were  doing)  and  showed  also  that  the  New- 
mans' inventory  and  appraisement  had  been  begun  pre- 
viously and  was  then  "in  progress  "  ? 

To  illustrate  the  character  of  that  inventory  and 
appraisement  of  the  Newmans,   it    will  be   enough  to 


1^3 

mention  the  item  set  down  by  them  as  profits  earned 
between  June,  1889,  and  February,  1890,  the  time  of 
Mr.  Levinson's  death.  That  item  is  only  $5,927.29 
for  profits  earned  in  the  part  of  the  year  covering  the 
Christmas  season,  the  best  part  of  the  year  for  sales — 
an  item  of  much  less  than  2  per  cent  of  the  sales.  This 
was  at  the  rate  of  only  $8,890.00  for  profits  in  the  entire 
year.  But  prior  to  that  time  the  profits  of  the  firm 
had  been  such  sums  per  year  as  $32,401.25  or  8  per 
cent,  of  the  sales;  and  $39,580.51  or  10  per  cent,  of 
the  sales.  And  in  the  year  next  after  their  partner's 
death  the  Newmans  themselves  divided  up  and 
pocketed  as  their  own  the  sum  of  $44,252.45,  as  profits, 
being  more  than  8  per  cent,  of  the  sales,  and  in  the 
next  fifteen  months  the  sum  of  $61,288.11,  also  more 
than  8  per  cent,  of  the  sales 

Again,  consider  the  seizure  by  the  Newmans  of  the 
entire  asset  of  the  good  will  of  the  business,  an  asset 
of  enormous  value,  without  allowing  so  much  as  a  cent 
for  it.  All  that  enormous  asset,  described  by  Dr. 
Johnson  as  "the  potentiality  of  growing  rich  beyond 
the  dreams  of  avarice,"  they  have  taken  as  an  out  and 
out  robbery. 

The  Civil  Code  of  California  states  (Sec.  993)  : 

"The  good  will  of  a  business  is  property,  trans- 
ferable like  any  other." 

In  Binninger  vs.  Clark^  10  Abb.  Pr.  N.  S.,  269,  the 
Court  said : 

"The  good  will  of  a  business  firm  is  an  import- 
ant part  of  its  property,  and  will  be  protected  by  a 
Court  of  Equity,  whenever  a  proper  case  arises." 


I04 

In  William  vs.  Wilson,  4  Sandf.  Ch.,  380,  the  Court 
said : 

*'It  is  useless  to  trace  the  origin  and  growth  of 
this  good  will.  All  the  partners  contributed  to  it, 
and  whether  in  equal  or  very  unequal  proportions, 
is  quite  immaterial.  It  belongs  equally  to  them  all, 
and  is  an  important  and  valuable  interest  which 
the  law  recognizes  and  will  protect. '^ 

In  The  G,  &  H.  Manuf.  Co,  vs.  Hall,  69  N.  Y.,  230, 
the  Court  said  of  the  good  will  of  a  business : 

''It  does  not  mean  simply  the  advantage  of 
occupying  particular  premises  which  have  been 
occupied  by  a  manufacturer,  etc.  It  means  every 
advantage,  every  positive  advantage,  that  has  been 
acquired  by  a  proprietor  in  carrying  on  his  busi- 
ness, whether  connected,  with  the  premises  in 
which  the  business  is  conducted  or  with  the  name 
under  which  it  is  managed,  or  with  any  other 
matter  carrying  with  it  thebenefit  of  the  business.'^ 

In  Churton  vs  Douglas^  Johns.  Ch.,    188,  the  Court 
said: 

"The  name  of  a  firm  is  a  ver}^  important  part  of 
the  good  will  of  the  business  carried  on  by  that 
firm.  A  person  says,  'I  have  always  bought  good 
articles  at  such  a  house  of  business;  I  know  it  by 
that  name,  and  I  send  to  the  house  of  business 
identified  by  that  name,  for  that  purpose. ' " 

In   Levy  vs.    Walker,  L.   R.    10,  Ch.   Div.    448,  the 
Court  said,  by  Lord  Justice  James: 

"  But  there  is  another  point  upon  which  I  my- 
self cannot  entertain  any  doubt,  which  is  this, 
that  the  assignment  of  the  good  will  and  business 
of  Charbonnel  &  Walker  did  convey  the  right  to 
use  the  name  of  Charbonnel  &    Walker,  and  the 


I05 

exclusive  right  to  use  that  name  as  between  the 
vendor  and  the  purchaser  of  that  business.  Whether 
it  would  prevent  another  person  from  afterwards 
using  the  name  of  Chm'bonnel^  I  do  not  say;  but 
the  trade  name,  made  up  of  parts  of  two  real 
names,  as  the  Master  of  the  Rolls  says — the 
trade  name  of  Charbonnel  &  Walker  (whether  it 
was  entirely  a  ficticious  name  can  make  no  differ- 
ence)— was  the  name  of  the  business  and  that 
business  was  sold.  That  was  a  name  with  which 
every  article  sold  might  have  been  impressed,  just 
as  in  the  case  of  Milling f on  vs.  Fox  (3  My.  &  Cr.), 
where  the  name  was  continued  as  part  of  the  des- 
ignation of  the  article  sold.  I  think  it  right  to 
say  that  the  sale  of  the  good  will  and  business 
conveyed  the  right  to  the  use  of  the  partnership 
name  as  a  description  of  the  articles  sold  in  that 
trade,  and  that  that  right  is  an  exclusive  right  as 
against  the  person  who  sold  it,  and  an  exclusive 
right  as  against  all  the  world,  so  that  no  other  per- 
son could  represent  himself  as  carrying  on  the  same 
business." 

Other  items,  other  proofs  of  the  enormity  of  the 
robbery,  have  been  mentioned  in  preceding  pages.  It 
is  there  shown  that,  even  after  themselves  inventory- 
ing and  appraising  the  assets,  the  Newmans  could  not 
refrain  from  stealing  another  sum  of  $593.18,  shown 
by  their  own  "  balance  sheet."  They  are  like  the  cav- 
ern in  the  fable,  which  was  known  to  contain  the  lair 
of  a  ravenous  beast  from  the  fact  that,  while  the  foot- 
prints showed  that  many  innocent  creatures  had  gone 
into  it,  there  was  no  indication  that  any  had  ever  come 
out. 

The  amount  of  the  robbery  can  not  be  fully  known 
without  an  accounting  and  a  winding  up  of  the  firm; 
but    at  a   low   estimate    the  property  of  the  despoiled 


io6 

family  now  in  the  hands  of  the  two  Newmans  amounts 
to  upwards  of  $200,000.00.  And,  as  has  been  shown 
above,  Ralph  C.  Harrison,  Associate  Justice  of  the 
Supreme  Court  of  California,  is  a  party  to  that  entire 
robbery. 


The  Announcement  of  the  Brief  in  the  Newspapers. 

The  brief  was  filed  on  November  30,  1894.  Within 
two  or  three  days  afterward,  various  daily  newspapers 
of  San  Francisco  published  news  articles  about  it.  One 
such  news  article  was  published  in  The  Daily  Report 
and  another  in  The  Evening  Post^  both  on  December 
I,  1894.  Another  was  published  in  The  Examiner^ 
another  in  The  Chronicle,  and  another  in  The  Morning 
Call,  the  last  three  all  on  December  2,  1894.  All 
these  news  articles  announced  that  the  brief  charged 
and  showed  a  case  of  outrageous  fraud  and  corrupt 
practice,  in  which  Ralph  C  Harrison,  who  subsequently 
to  its  commission  had  become  one  of  the  Justices  of 
the  Supreme  Court,  was  exhibited  as  a  participant  and 
particeps  criminis.  Until  the  disbarment  proceeding 
was  actually  begun,  no  newspaper  even  so  much  as 
suggested  that  the  brief  contained  any  "  menace  "  or 
''threat"  or  ''assault."  And  even  after  the  disbar- 
ment proceeding  had  been  begun,  no  newspaper  except 
those  of  The  Southern  Pacific  Company  (presently  to 
be  mentioned)  even  so  much  as  suggested  that  the 
brief  contained  any  "  menace "  or  "  threat "  or 
"  assault." 


I07 

II. 

THE  DISBARMENT  OF  THE  ATTORNEY 


I.     The  Citation. 

On  December  7,  1894,  just  one  week  after  the  brief 
was  filed,  all  the  Justices  except  Harrison  signed  an 
order  of  citation  requiring  me  to  appear  and  show  cause 
why  I  should  not  be  disbarred,  and  for  no  other  ground 
than  preparing  and  filing  that  brief.  This  was  of 
course  long  before  the  case  in  which  the  brief  was  filed 
had  been  heard  or  even  set  for  hearing,  and  at  a  time 
when  the  brief  had  not  been  submitted  to  the  Court  or 
any  Justice  for  any  action  whatever. 

Let  it  be  borne  in  mind  that,  up  to  this  time,  the 
only  way  in  which  the  brief  could  have  been  openly 
brought  to  the  attention  of  the  Justices  was  by  the 
articles  in  the  newspapers  just  mentioned,  and  that 
7ione  of  those  articles  mentioned  the  brief  as  doing  more 
than  to  show  an  outrageous  piece  of  fraud  and  villainy 
in  which  Jtis tic e  Ralph  C.  Harrison  had  been  a  party. 

That  citation  contains  all  the  accusations  that  were 
made  against  me,  except  those  (presently  to  be  men- 
tioned) set  out  as  new  accusations  in  the  judgment  of 
disbarment.  A  copy  of  the  citation  is  in  the  Appendix 
(pp.  4-6.) 

I  ask  the  reader  to  examine  the  citation  by  itself. 
The  part  of  the  brief  referred  to  in  it  was  the  exposi- 
tion of  the  secret  transfer  by  the  executor  to  the  two 
Newmans,  and  the  putting  the  papers  of  transfer  in  the 
handwriting  of  a  man  who  was  about  to  be  a  Justice  of 
the  Supreme  Court  of  the  State — a  secret  transfer  in 


io8 


which  the  man  who  was  about  to  become  such  Justice 
was  one  of  the  contrivers — the  exposition  of  it  as  a 
scheme  and  plot  to  tempt  the  Justices  of  the  Supreme 
Court  when  they  should  be  called  upon  to  decide  the 
case,  to  deny  the  fraud,  and  uphold  the  transaction  so 
as  to  shield  their  associates  and  intimates.  It  was  the 
part  of  the  brief  described  on  pp.  75  and  79-81  above. 

I  ask  the  reader  to  examine  the  citation  by  itself,  and 
to  examine  the  extract  of  the  brief  there  quoted.  Is  it 
anything  less  than  outrage  to  pretend  that  what  is 
there  shown  was  any  ground  for  disbarring  the  author 
of  the  JDrief?'^' 

I  ask  the  reader  to  notice  also  that  the  citation  did 
not  charge  that  the  brief  contained  any  ^'  menace  "  or 
"threat"  or  "assault." 


2.     The    Evening    Post  and   the    Record-Union. — The    Hand 
of  The  Southern  Pacific  Company. 

But  as  soon  as  the  citation  was  made,  on  the  very  day 
on  which  it  was  made,  The  Evenirig  Post,  published  in 
San  Francisco,  a  newspaper  of  The  Southern  Pacific  Com- 
pany, was  in  the  secret  that  the  disbarment  was  to  be 
made  upon  the  trumped  up  ground  that  the  brief  was  an 
^^  attack  upon  the  Supreme  Court  in  general  and  Justice 
Harrison  in  particular. "f  Pray  observe  that  this  was 
upon  the  very  day  upon  which  the  citation  was  made. 
And  thereupon  The  Evening  Post^  published  in  San 
Francisco,  and  The  Record-Union^  published  in  Sacra- 
mento, raised  and  kept  up  the  outcry  that  the  brief  outra- 
geously   threatened  and    menaced    and    assaulted    the 

*See  the  Appendix,  p.  5. 
tSee  the  Appendix,  p.  6. 


I09 

Supreme  Court  itself  and  all  the  Justices — the  identi- 
cal false  and  trumped  up  grounds  and  trickeries  after- 
ward put  into  the  disbarment  judgment.  All  the  lan- 
guage of  the  judgment  of  disbarment  declaring  that 
such  was  the  character  of  the  brief  was  taken  from 
those  newspaper  articles  of  The  Southern  Pacific  Com- 
pany. 

And  it  was  in  those  articles  in  The  Record-Union 
that  it  was  laboriously  and  dishonestly  urged  that  the 
charges  of  fraud  contained  in  the  brief  were  groundless 
— another  ground  of  the  disbarment  judgment.  All 
the  language  of  the  disbarment  judgment  setting  forth 
that  ground  of  the  disbarment  was  taken  from  those 
articles  in  The  Record-Union. 

The  Re co7^d- Union  wdiS  then,  as  it  still  is,  published 
under  the  immediate  supervision  of  Wm.  H.  Mills,  one 
of  the  chief  officers  and  agents  of  The  Southern  Pacific 
Company.  Wm.  H.  Mills  was  then,  as  he  ever  since 
has  been,  a  resident  of  San  Francisco,  and  he  was  then, 
as  he  still  is,  the  head  and  manager  of  the  newspaper 
bureau  of  The  Southern  Pacific  Company  and  their 
censor  of  the  newspapers  of  the  State. 

The  articles  here  referred  to  were  published  as  fol- 
lows :  A  news  article  in  The  Evening  Post  on  Decem- 
ber 7,  1894;  an  editorial  in  the  same  paper  on  Decem- 
ber 12, 1894;  an  editorial  in  The  Record-Union  on  Decem- 
ber 13,  1894;  an  editorial  in  The  Record-Union  on  De- 
cember 20,  1894;  and  an  editorial  in  The  Evening  Post 
on  December  20,  1894.  A  copy  of  each  article  is  shown 
in  the  Appendix  (pp.  6-21). 

These  articles  may  be  seen  in  the  files  of  the  news- 
papers above  named.  The  files  may  be  seen  in  the 
Mechanics'  Institute  Library  in  San  Francisco. 


no 

I  ask  the  reader  to  compare  the  articles  so  published 
in  The  Evening  Post  and  The  Record-Union^  respect- 
ively, with  the  judgment  of  disbarment  (shown  on  pp. 
22-33  of  the  Appendix).  Those  of  December  the  7th,  De- 
cember the  1 2th,  and  December  the  13th  were  published 
even  before  there  was  the  pretense  of  a  hearing  of  the 
charges  made  in  the  citation.  Now,  take  for  example 
the  long  editorial  in  The  Record-Unioji  on  December  the 
13th,  which  occupied  almost  the  entire  editorial  side  of 
the  paper.  There  (with  the  exception  of  six  new  accu- 
sations presently  to  be  mentioned)  you  will  see 
all  the  falsehoods  of  the  judgment  of  disbarment — 
falsehoods  of  fact  and  falsehoods  of  law — all  the  false 
and  trumped  up  grounds,  all  the  malice,  all  the  trick- 
eries, all  the  peculiarly  false  terms- and  phrases,  even  the 
tricks  of  expression,  and  also  the  identical  motive^  of 
the  judgment  of  disbarment.  And  there  they  are  re- 
peated in  the  articles  published  on  December  the  20th  in 
both  newspapers,  almost  three  weeks  before  the  disbar- 
ment judgment  was  made — that  in  The  Record-  Unio7i  oc- 
cupying the  entire  editorial  side  of  the  paper. 

The  purpose  of  those  articles  in  The  Evening  Post 
and  The  Record-Union  was  to  deceive  and  mislead  the 
people,  to  induce  the  people  to  suppose  that  the  disbar- 
ment which  had  already  been  determined  upon  and 
was  about  to  be  inflicted,  would  be  a  proper  act — to 
work  up  and  prepare  a  false  public  opinion  to  bolster 
the  outrages  which  had  been  determined  upon  and 
were  about  to  be  committed — and  also  to  divert  atten- 
tion from  the  fraud  and  treachery  and  wicked  use  of  his 
office  as  Associate  Justice  of  the  Supreme  Court  which 
was  being  practiced  by  Ralph  C.  Harrison  upon  Mrs. 
Fanny  Levinson  and  her  daughters.    See,  for  instance, 


Ill 


suchexpressions  as  "the  time  has  come  when  law-abiding 
citizens  must  rally,"  etc.  (Appendix  p.  9).  For  the 
same  purpose  there  was  placed  in  the  news  article  pub- 
lished in  The  Evening  Post  on  December  7,  1894,  the 
lying  statement  of  "  the  general  belief  among  attor- 
neys" (See  the  Appendix  p.  8).  That  statement  was 
a  pure  lie,  for  it  was  not  until  that  day  that  the  pro- 
ceeding was  begun,  and  no  such  proceeding  had  been 
previously  suggested,  and  that  very  article  was  the  first 
announcement  to  the  public  that  the  proceeding  had 
been  begun,  so  that  before  writing  the  article  it  was 
utterly  impossible  to  have  ascertained  "the  general  be- 
lief among  attorneys."  The  evident  purpose  of  the  lie 
was  to  work  up  a  false  public  opinion.  It  was  the  same 
purpose  as  that  for  which  "a  committee  from  the  Bar 
Association  of  San  Francisco"  was  obtained,  as  will 
presently  be  shown. 

I  ask  the  reader  to  bear  in  mind  that,  with  the  sole 
exception  of  those  two  newspapers  of  The  Southern 
Pacific  Company,  no  newspaper  indicated  in  advance 
that  it  was  to  be  pretended  that  the  brief  conta-ined  a 
"threat,'' a  "  menace  "  or  an  "assault''  or  any  of  the 
grounds,  all  of  them  false  and  feigned,  upon  which  the 
disbarment  was  to  be  made.  And  let  it  be  borne  in 
mind  that  The  Evening  Post  was  in  the  secret  on  De- 
cember the  7th,  1894,  on  the  very  day  when  the  disbar- 
ment proceeding  was  begun.  The  key-note  was  there 
struck  in  the  words,  "  Attorney  Horace  W.  Philbrook's 
attack  upon  the  Supreme  Court  in  general  and  Justice 
Harrison  in  particular  has  landed  him  in  a  peck  of 
trouble."     (See  the  Appendix,  p.  6.) 

Is  it  not  plain  that  those  articles  in  the  newspapers 
of  The  Southern  Pacific  Company  and  the  disbarment 


112 

judp^ment  which  was  made  shortly  afterward  (January 
5,  1895),  are  the  work  of  one  and  the  same  mind? 
Otherwise  would  it  not  have  been  manifestly  impossible 
to  print  such  articles  in  advance  ? 

So  important  is  this  feature  of  the  case  that  I  shall 
point  to  it  again  in  connection  with  a  particular  review 
of  the  judgment  of  disbarment. 

There  was  the  source  of  the  judgment  of  disbarment 
and  of  the  disbarment  case — in  the  private  offices,  in 
the  secret  councils  of  The  Southern  Pacific  Company. 
Though  I  did  not  then  know  it,  it  was  the  fact  that  my 
brief,  in  striking  Ralph  C.  Harrison,  Associate  Justice 
of  the  Supreme  Court  of  California,  struck  the  foul 
and  wicked  nest  of  The  Southern  Pacific  Company, 
and  forthwith  the  whole  terrible  organization  was 
awake,  and — like  a  nest  of  venomous  snakes — mali- 
ciously bent  upon  the  destruction  of  my  family  and 
myself. 

The  anarchist  riots  and  murders  at  the  Haymarket 
in  Chicago  occurred  in  May,  1886.  For  those  crimes 
seven  of  the  anarchists  were  speedily  tried  and  con- 
demned to  death,  and  four  of  them  executed.  In  the 
trial  much  of  the  evidence  against  the  persons  thus 
condemned  and  executed  consisted  of  newspaper  articles 
published  in  the  Alarm  and  the  Arbeiter  Zeitung^ 
newspapers  of  the  society  of  anarchists,  the  articles  so 
given  in  evidence  beginning  as  far  back  as  March, 
1885.  But  all  those  articles  combined  were  of  a  char- 
acter which  furnished  against  the  anarchists  who,  upon 
such  evidence  were  condemned  and  executed,  very  far 
less  proof  than,  in  the  case  here,  these  articles  in  The 
Evening  Post  and  The  Record-Union  furnish  of  the 
authorship  of  The  Southern  Pacific   Company   in  the 


113 

disbarment  judgment  and  the  whole  disbarment  pro- 
ceeding/^' 

And  here  may  be  seen  the  wisdom,  if  the  case  was  to 
be  carried  on  at  all,  of  writing  the  brief  in  the  very 
manner  in  which  it  was  written.  If  the  brief  had  not 
laid  the  sin  home  to  the  sinner  as  it  did,  justice  would 
have  been  simply  denied  without  furnishing  the  proof 
that  is  here  exhibited  of  the  extreme  corrupliop  and 
wickedness  of  the  Judges  and  of  their  being  the  corrupt 
tools  of  The  Southern  Pacific  Company. 

Wendell  Phillips,  in  referring  to  the  speech  for  which 
Charles  Sumner  was  struck  down  in  the  United  States 
Senate,  once  said : 

"Nobody  needs  now  to  read  this  speech  of 
Charles  Sumner  to  know  whether  it  is  good.  We 
measure  the  amount  of  the  charge  by  the  rebound. 
When  the  spear,  driven  to  the  quick,  makes  the 
Devil  start  up  in  his  own  likeness,  we  may  be  sure 
that  it  is  the  spear  of  Ithuriel." 


3.     "A  Committee    From  the  Bar  Association  of   San  Fran- 
cisco."!    The  Hand  of  The  Southern    Pacific  Company. 

In  1894,  when  the  brief  was  filed,  one  Robert  Y. 
Hayne  and  E.  S.  Pillsbury,  the  agent  of  The  Southern 
Pacific  Company  who  in  1890  managed  in  the  conven- 
tion the  nomination  of  Ralph  C.  Harrison  as  Justice  of 
the  Supreme  Court,  were  law  partners  in  San  Fran- 
cisco. At  the  same  time  the  son  of  Justice  Ralph  C. 
Harrison  was  an  occupant  of  their  law  offices  and  asso- 
ciated with  them  in  the  practice  of  the  law.    There  had 

*See  the  Anarchtsis'  Case  (Spiess  vs.  The  People,  122  111.  i.) 
tSee  the  Appendix  pp.  22,  32;  also  pp.  9,  20,  36. 


114 

already  been  for  many  years  in  San  Francisco  a  private 
club  of  lawj^ers  called  the  Bar  Association  of  San 
Francisco,  and  all  the  Justices  of  the  Supreme  Court 
and  the  principal  attorneys  of  The  Southern  Pacific 
Company  were  then,  as  they  still  are,  members  of  it. 

At  the  time  the  brief  was  filed  and  when  the  disbar- 
ment was  inflicted,  E.  R.  Ta34or,  a  crony  of  Justice 
Ralph  C.  Harrison  and  one  of  the  attorneys  for  the  two 
Newmans,  was  the  president  of  this  club. 

To  return  to  the  articles  in  the  newspapers  of  The 
Southern  Pacific  Compan3^  As  already  stated,  an  edi- 
torial was  published  on  the  evening  of  December  12, 
1894,  in  The  Evening  Post^  and  on  the  morning  of  De- 
cember 13,  1894,  a  long  editorial,  which  was  substan- 
tially the  judgment  of  disbarment,  was  published  in 
The  Record- Uiiion"^ 

Now,  on  December  14,  1894,  the  next  day  after  the 
editorial  last  mentioned  appeared,  this  Robert  Y. 
Hayne  got  together  a  meeting  of  some  of  the  members 
of  the  Bar  Association  of  San  Francisco  and  induced 
them  to  appoint  a  committee  and  to  make  him  the 
chairman  of  it,  with  instruction  to  attend  at  the  hear- 
ing of  the  citation,  "for  the  purpose  of  seeing  that  said 
matter  is  properly  presented."t  The  committee  at- 
tended accordingly,  and  this  Robert  Y.  Hayne,  appear- 
ing^ as  the  chairman  of  the  committee,  addressed  the 
Court,  and,  after  declaring  that  the  committee,  after 
examining  the  case,  were  of  the  opinion  that  the  proper 
presentation  of  it  required  them  to  urge  that  the  disbar- 
ment be  inflicted,  followed  with  an  address  in  which — 
while  hypocritically  asking  the  Court  to  allow  me  all  the 


*  See  the  Appendix  pp.  8-15. 
tSee  the  Appendix  p.  16. 


time  I  might  ask  for  presenting  my  defense,  and  cover- 
ing me  with  fulsome  flattery  of  my  ability,  as  a  snake 
covers  with  slime  the  victim  he  wishes  to  devour — he, 
with  his  characteristic  dishonesty  and  trickery,  repeated 
to  the  Court  what  I  subsequently  discovered  to  be  the 
very  identical  argumentof  falsehood  and  trickery  which 
had  been  published  in  The  Record-Union  on  December 
the  13th,  as  above  stated.  That  such  was  his  argument 
is  shown  in  the  editorial  published  in  The  Record- 
Union  on  December  the  20th  *  and  is  also  confessed  by 
Wm.  H.  Beatty,  the  Chief  Justice  in  his  concurrence 
in  the  disbarment  filed  on  January  the  loth.f 

There  was  Robert  Y.  Hayne,  partner  of  E.  S.  Pills- 
bury,  the  agent  of  The  Southern  Pacific  Company, 
delivering  in  San  Francisco  on  December  the  17th  and 
the  1 8th,  as  chairman  of  a  committee  of  the  Bar  Asso- 
ciation of  San  Francisco,  an  argument  which  was  all 
invention  and  falsehood  and  trickery,  and  that  same 
identical  argument  with  all  its  peculiar  invention  and 
falsehood  and  trickery  had  been  published  just  four 
days  previously  by  The  Southern  Pacific  Company  in 
Sacramento  as  an  editorial  in  their  newspaper,  The 
Record-  Union. 

The  other  members  of  the  committee  remained  silent. 

It  was  by  means  of  this  help  from  Robert  Y.  Hayne 
that  the  disbarment  judgment  was  made  to  contain  the 
following  expressions : 

^  *  "A  committee  from  the  Bar  Association  of  San 
Francisco  requested  to  be  allowed  to  appear  *  for  the  purpose 
of  seeing  that  said  matter  is  properly  presented,'  and  their 
request  was  granted.  >Ji  ^  *  'I^he  committee  of  the  Bar 
Association  argued  that  he  should  be  disbarred."! 


=^See  the  Appendix  p.  20 
tSee  the  Appendix  p.  32. 
JSee  the  Appendix,  p.  22. 


ii6 

"  Mr.  Philbrook  had  not  only  been  informed  by  a  brother 
attorney  of  the  offensive  construction  which  might  be  put 
upon  his  brief,  he  had  been  notified  at  the  opening  of  the 
proceedings  by  the  argument  of  Mr.  Hayne  that  such  was 
the  construction  placed  upon  it  by  the  committee  of  the  Bar 
Association,  and  he  was  plainly  informed  from  the  bench 
that  it  was  understood  in  the  same  way  by  the  Court."* 

The  plainly  evident  purpose  of  that  crafty,  base  and 
cowardly  piece  of  trickery  of  Robert  Y.  Hayne  was  to> 
bolster  the  outrage  about  to  be  committed  by  making 
it  appear  to  the  world  (though  falsely)  that  the  disbar- 
ment which  was  about  to  be  inflicted  was  approved  of 
by  the  legal  profession,  and  to  have  the  expressions 
just  quoted  inserted  in  the  judgment  of  disbarment — 
the  plainly  evident  purpose  of  so  inserting  those  ex- 
pressions being  to  bolster  the  outrage  by  making  it 
appear  to  the  world  (though  falsely)  that  the  disbar- 
ment was  approved  of  by  the  members  of  my  own  pro- 
fession. It  was  throughout  a  cowardly  piece  of  trickery. 
Now  take  the  circumstances.  Is  it  not  plain  that  all 
that  base,  cruel  and  infamous  trickery  was  the  work  of 
The  Southern  Pacific  Company  ? 

That  a  resort  to  that  very  trickery  had  been  planned 
by  The  Southern  Pacific  Company  as  early  as  the  very 
day  when  the  disbarment  proceeding  was  commenced,, 
may  be  seen  in  the  news  article  published  in  The 
Evening  Post  on  December  7,  1894,  in  the  statement 
there  made  that :  ''The  general  belief  among  attorneys 
is  that  only  the  most  abject  apology  will  save  Phil- 
brook,  and  it  is  doubtful  if  that  will  satisfy  the  court. "f 
As  already  pointed  out,  so  far  as  stating  the  "general 
belief  among  attorneys,"  such  a  statement  made  at  that 

time  was  necessarily  a  falsehood,  for  that  very  article 

— — * 

*See  the  Appendix,  p.  32. 
tSee  the  Appendix,  p.  8. 


117 

was  the  first  announcement  to  the  public  that  such  a 
proceeding  had  been  begun,  and  the  motive  of  that 
falsehood  is  self-evident.  And  the  same  motive  appears 
in  the  long  editorial  which  was  published  in  The 
Record-Union  on  December  the  20th,  and  which  occu- 
pied the  entire  editorial  part  of  the  paper.  That  editorial 
is  substantially  the  judgment  of  disbarment,  which  was 
formally  made  only  sixteen  days  afterwards  by  the 
Justices.  Substantially  all  the  peculiarly  false  grounds, 
all  the  trickeries,  all  the  peculiar  terms  and  phrases, 
the  identical  motive^  and  even  the  tricks  of  expression 
which  sixteen  days  later  were  placed  in  the  judgment 
of  disbarment,  all  are  in  that  editorial.  And  in  that 
-editorial  the  appearance  of  that  committee  from  the 
Bar  Association  of  San  Francisco  in  support  of  the  dis- 
barment is  used  precisely  as  it  is  in  the  judgment  of 
disbarment,  and  plainl}^  with  the  same  motive/^ 


4.      Wm.    F.    Herrin    and    the    Justices    of    the    Supreme 
Court. — The  Work  of  The  Southern  Pacific  Company. 

Ever  since  his  advancement  to  the  position  in  1893, 
Wm.  F.  Herrin  has  been  the  chief  counsel  of  The 
Southern  Pacific  Company,  with  headquarters  at  their 
offices  in  San  Francisco.  Wm.  F.  Herrin  is  well  known 
in  California,  and  is  universally  considered  to  be  an 
embodiment  of  all  the  evil  policy  and  evil  practices  of 
The  Southern  Pacific  Company.  He  is  well  known  as 
being  the  embodiment  of  cunning  and  craft,  without 
-conscience,  without  sentiment,  unscrupulous,  hard, 
merciless,  quick  and  accurate  in  perceiving,  and  using 


"See  the  Appendix,  p.  20. 


ii8 


and  cultivating  the  moral  weaknesses  of  individuals,  a 
shrewd,  cunning,  unfeeling  minister  of  evil. 

Now,  during  all  the  time  between  the  issuance  of 
the  citation  and  the  making  of  the  judgment  of  disbar- 
ment, Wm.  F.  Herrin  and  Thos.  B.  McFarland,  one  of 
the  Justices  of  the  Supreme  Court,  met  daily,  late  in 
the  afternoon,  on  Bush  street  between  Montgomery  and 
Sansome  streets  in  San  Francisco,  and  would  walk 
slowly  back  and  forth  together  for  a  long  time  engaged 
in  close,  private,  earnest  consultation. 


5.     The  Written  Answer  to  the  Citation. 

The  citation  directed  me  to  appear  on  December  17, 
1894.  On  that  day  I  accordingly  appeared  in  the 
Supreme  Court  of  California,  at  San  Francisco,  and 
there  filed  an  answer  to  the  citation  setting  out  the 
brief  as  filed,  giving  the  facts  of  the  fraudulent  con- 
federacy of  Mr.  Harrison  and  the  Newmans  as  above 
stated,  pointing  out  the  device  embodied  in  the  secret 
transfer  of  September  6,  1890,  to  cut  off  Mrs.  Levinson 
and  her  daughters  from  redress,  and  showing  the  evil 
success  in  which  the  device  had  been  worked  by  the 
confederates  in  the  Superior  Court,  both  in  the  decision 
given  by  the  Superior  Court,  and  in  the  fact  which  has 
been  stated  above,  that  certain  attorneys  who  had  there 
begun  to  assist  in  presenting  the  case  for  the  plaintiff 
had  been  terrorized  into  going  over  treacherously  to  the 
side  of  the  two  Newmans.  The  answer  also  showed, 
setting  out  a  copy  of  the  evidence  and  proceedings^ 
that  Mrs.  Levinson  and  her  daughters,  in  their  appeal 
to  the  Probate  Court  not  to  authorize  payment  to  those 
treacherous  attorneys,  had  been  met  and  defeated  by 


119 

the  same  outcry  that  the  case  in  which  those  attorneys 
had  been  employed  was  an  attack  on  a  Justice  of  the 
Supreme  Court,  so  that  there,  also,  Mrs.  Levinson  and 
her  daughters  had  been  made  outlaws  by  the  wicked- 
ness of  Mr.  Harrison  and  his  confederates.  All  this 
was  given  to  show  and  illustrate  the  propriety  of  the 
exposition  contained  in  the  brief  of  the  villainy  of  Mr. 
Harrison  as  a  confederate  of  the  two  Newmans.  This 
answer  consisted  of  nearly  forty  typewritten  pages  of 
the  size  known  as  legal  cap,  besides  briefs  and  copies 
of  records  filed  with  it.  The  answer  quoted  from  the 
record  of  the  case  in  which  the  brief  had  been  filed,  the 
evidence  by  which  it  was  proved  fully  and  without  con- 
tradiction that  the  argument  of  the  brief,  and  particu- 
larly the  part  charged  to  be  objectionable,  was  proper 
and  just. 


6.     My  Position  at  the  Time  of  the  Hearing  of  the  Citation. 

It  is  well  known  that  every  one  who  enters  the  law 
as  a  profession  and  depends  upon  merit  for  success 
must  expend  much  money  and  must  toil  most  labori- 
ously for  many  years  before  his  earnings  can  equal  his 
expenses.  If  he  has  a  family  dependent  upon  him, 
they  must  through  all  those  years  undergo  with  him 
continual  self-denial,  buoyed  only  by  the  hope  of  better 
things  at  some  time  in  the  future.  If  he  hopes  to  be 
greatly  useful  to  his  friends  and  fellow  men,  he  must 
through  all  those  years  lack  the  necessary  means. 
Through  such  an  experience  I  had  gone  when  the  dis- 
barment was  so  foully  and  wickedly  inflicted  upon  me. 
For  years  I  had  toiled  unremittingly,  without  a  vaca- 
tion or  even  a  day's  respite,  laboring  through  long  days 


I20 

and  far  into  the  nights,  to  do  the  best  for  my  clients 
and  to  perfect  myself  in  my  profession.  As  a  result  I 
had  at  length  acquired  a  comfortable  and  steadil}^  in- 
creasing income.  -  I  was  free  from  debt  and  had  a  well 
furnished  law  office  and  a  good  library.  I  was  well 
known  as  a  lawyer  of  the  best  reputation.  My  situa- 
tion was  well  and  generally  known  by  the  lawyers  of 
San  Francisco. 

For  no  other  offense  than  the  proper  use  of  my  pro- 
fession, only  for  properly  seeking  on  behalf  of  a  dead 
man's  helpless  family,  for  a  feeble  widow  and  her 
daughters,  justice  against  their  betrayers  and  de- 
spoilers  and  against  the  treachery  and  cowardly 
cruelty  of  a  high  placed  rascal,  all  for  which  I  had 
made  great  expenditures  of  money,  all  for  which  my 
dependent  family  had  waited  patiently  for  years,  all  for 
which  I  had  for  years  toiled  and  practiced  self-denial — 
all  was  to  be  destroyed.  It  had  already  been  resolved 
upon  before  the  form  of  a  hearing.  My  law  office  was 
to  be  broken  up,  I  was  to  be  compelled  to  sacrifice 
my  library,  all  my  books,  even  my  office  furni- 
ture. I,  who  had  always  been  proud  never  to 
owe  a  debt,  was  to  be  overwhelmed  with  debts. 
I,  who  had  always  been  to  the  last  degree  proud 
of  my  good  name,  was,  after  being  denied  a  hearing, 
to  be  published  forever  and  throughout  the  world 
as  a  criminal.  My  dependent  family — what  slow  and 
cruel  tortures  upon  them  were  already  resolved  upon  ! 
All  this  was  to  be  laid  upon  us,  not  upon  even  a  pre- 
tense of  my  being  unfit  for  my  profession,  but  avow- 
edly as  "punishment."  All  this  was  to  be  laid  upon 
us  in  the  name  of  the  State  of  California,  and  by  means 
of  using  to  that  end  the  power  of  all  the  people  of  the 


121 


State.  The  false  and  feigned  grounds  upon  which  it 
was  to  be  done,  the  very  words  and  phrases  of  the  de- 
cree, all  had  been,  before  I  was  allowed  to  know  that 
any  such  ground  was  even  thought  of,  and  before  even 
the  form  of  a  hearing,  published  as  editorials  by  The 
Southern  Pacific  Company  in  their  newspaper  organ 
The  Re co7'd- Union, 

On  behalf  of  my  clients,  a  dead  man's  helpless  fam- 
ily, a  feeble  widow  and  her  daughters,  I  had  shown  that 
they  had  been  wickedl^^  subjected  to  treachery  and, 
among  other  wrongs,  deprived  of  their  own  for  the 
ver}^  purpose  of  persecuting  and  torturing  them  with 
penury  and  starvation  until,  under  the  compulsion  of 
such  cruel,  treacherous  and  cowardly  torture,  they 
would  submit  to  being  robbed  and  despoiled.  How 
swift  and  how  terrible  was  to  be  my  answer  !  To  my 
dependent  family  and  myself  there  was  to  be  dealt  out- 
rages of  the  same  character  and  far  greater  in  degree. 
It  was  as  if  our  persecutors  had  said,  '^  You  object  to 
the  practice  of  treachery  upon  this  aged  widow  and 
her  daughters,  do  you  ?  They  shall  have  no  relief,  not 
even  a  hearing  of  their  case,  but  as  for  you,  for  having 
presented  their  complaint,  you  shall  have  far  greater 
treachery  dealt  out  to  you.  You  object  to  their  being  de- 
prived of  their  means  of  a  livelihood,  and  tortured  with 
penury  and  starvation,  do  you  ?  They  shall  have  no 
relief;  their  case  shall  not  even  be  heard  ;  but  as  for 
you,  for  having  presented  their  complaint,  3^ou  shall 
be  deprived  of  everything  which  you  have  acquired, 
and,  though  denied  a  trial,  you  shall  be  held  up  forever 
before  the  world  as  a  criminal,  and  upon  you  and  3^our 
dependent  famil}^  those  very  tortures  of  penury,  to 
which  you  object,  shall  be  inflicted.    And  all  this  shall 


122 

be  done  to  you  as  *  punishment '  and  in  the  name  and 
by  means  of  the  power  of  a  sovereign  State  of  the 
American  Union.  And  we  will  so  completely  close 
against  you  every  avenue  of  relief  and  even  the  news- 
papers of  the  country  that  your  fellowmen  shall  not 
be  able  to  compel  redress." 

In  November,  1897,  ^^^  newspapers  contained  an 
account  of  a  murder,  near  Kansas  City-r— the  murder  of 
a  little  girl  three  years  of  age  by  drowning  her  in  the 
Missouri  river.  The  murderer  was  the  child^s  father. 
He  did  the  murder  by  tying  the  little  girl's  hands  and 
feet  with  a  cord,  weighting  her  with  stones,  and  throw- 
ing her  in  that  condition  into  the  Missouri  -river.  He 
confessed  his  crime  and  went  willingly  to  execution. 
In  his  confession  he  said  that  as  he  was  tying  the  little 
one's  hands  and  feet  and  weighting-  her  with  stones, 
her  last  words,  said  to  him  with  trusting,  childish 
innocence,  were:  "  What  are  you  going  to  do  with  me, 
papa  ?"  What  he  was  going  to  do  was  to  have  the 
innocent,  trusting  child,  a  moment  later,  filled  with 
unspeakable  terror  and  agony,  making  a  desperate, 
terrible  and  futile  struggle  for  her  little  life  in  the 
slime  and  filth  beneath  the  muddy  waters  of  the  Mis- 
souri, and  that,  with  the  heart  of  a  devil,  he  did.  Who 
shall  say  that  a  thought  of  the  injustice,  treachery 
and  cruelty  of  her  father  did  not  mingle  with  her  un- 
speakable terror  and  agony  ? 

Would  any  one  feel  what  in  its  essence  treachery  is  ? 
There  it  is,  in  the  murder  of  that  little  girl.  Would 
any  one  know  what  a  traitor  is  ?  There  he  is,  in  that 
murderer. 

Such  a  traitor  has  Ralph  C.  Harrison  been  to  his 
clients,  Mrs.  Fanny  Levinson  and  her  daughters. 


123 

Such  a  traitor  is  every  false  and  corrupt  and  wicked 
judge. 

Up  to  the  very  time  when  the  disbarment  was  in- 
flicted I  was  as  free  from  even  the  least  sense  of  danger 
as  was  that  little  child.  I  also  was  as  puzzled  by  the 
disbarment  case  as  she  was  by  the  tying  of  her  hands 
and  feet  and  weighting  her  with  stones.  I  could  not 
even  imagine  what  it  really  meant.  I  did  not  suppose 
even  for  a  moment  that  I  was  to  be  disbarred,  or  that 
the  proceeding  would  result  otherwise  than  in  a  com- 
plete vindication  of  my  brief  and  the  assurance  of 
justice  for  Mrs.  Levinson  and  her  daughters.  I  there- 
fore welcomed  the  proceeding,  and,  when  on  the  17th 
and  i8th  days  of  December,  1894,  the  pretense  of  a 
hearing  of  the  citation  was  allowed,  I  gladly  used  the 
opportunity  to  exhibit  fully  the  proof  of  the  villainy 
and  wickedness  which  had  been  practiced  upon  them 
by  Justice  Ralph  C.  Harrison — the  full  and  ample 
justification  of  everything  said  in  the  brief.  That  I 
did  so  is  expressly  confessed  (though  not  in  any  spirit 
of  justice)  in  the  judgment  of  disbarment  itself,  both 
in  the  part  signed  by  five  Justices'^  and,  more  definitely, 
in  the  part  written  specially  by  Wm.  H.  Beatty,  the 
Chief  Justice.f  Little  did  I  suppose  that  those  whom 
I  was  addressing,  those  sworn  by  the  State  to  the  sacred 
trust  of  administering  justice,  had  already,  at  the  insti- 
gation of  that  terrible  organization.  The  Southern 
Pacific  Company,  and  obedient  to  their  foul  orders, 
with  the  hearts  of  devils,  resolved  upon  my  destruction, 
and  wickedly  were  about  to  consign  me  to  a  long  and 
desperate  struggle  for  life  through  years  of  torture. 

*  See  the  Appendix,  p.  22. 

fSee  the  Appendix,  p.  32  and  pp.  32-3. 


124 

7.     The  Judgment  of  Disbarment. 

After  going  through  the  pretense  of  a  hearing  of  the 
citation  on  the  17th  and  i8th  days  of  December,  1894, 
the  disbarment  judgment  was  made  on  January  5, 
1895.  Three  days  later  it  was  published  in  full  in  The 
Record- Union,  under  head  lines  beginning  with  the 
words  ^'A  Lawyer  Punished."  This  was  backed  up 
with  a  virulent  editorial  published  in  The  Record- 
Union  on  the  morning  of  January  the  loth.  On  Janu- 
ary the  loth,  later  in  the  day,  Wm.  H.  Beatty,  the 
Chief  Justice,  filed  a  special  concurrence,  and  this,  also, 
was  backed  up  with  like  articles  published  in  The 
Record-Union  on  January  the  14th.  All  the  papers 
and  newspaper  articles  here  referred  to  are  shown  ver- 
batim in  the  Appendix  (pp.  22-40). 


8.     The  Trumping  Up  of  New  Accusations. 

The  judgment  of  disbarment  contains  six  pretended 
grounds,  of  none  of  which  was  there  so  much  as  the 
pretense  of  notice  or  a  hearing.  The  six  new  accusa- 
tions here  referred  to  are,  in  the  judgment  of  disbar- 
ment, stated  in  the  following  passages : 

"It  also  contains  language  highly  reprehensible  concerning 
the  learned  Judge  of  the  Superior  Court  who  heard  and 
determined  said  action  at  nisi  prius,  and  his  answer  con- 
tains such  language  concerning  another  learned  judge  of  the 
Superior  Court  who  decided  the  other  cases  mentioned  in 
said  Philbrook's  answer."  * 

"  As  respondent  has  in  the  same  connection,  assailed  not 
only  all  the  members  of  this  Court  and  the  two  Superior 
Judges  above  referred  to,  but  also  certain  reputable  lawyers 
who  were  at  one  time  associated  with  him  in  the  litigation, 
and  a  special  administrator  who  was  appointed  at  his  owfi 
instance   and  out  of  his  own  office,  charity  might  possibly 


*  See  the  Appendix,  p.  23. 


125 

suggest  that  he  is  the  victim  of  abnormal  suspicion  and  dis- 
trust." * 

"  It  may  not  be  out  of  place  to  say  that  we  have  been 
lenient  to  the  respondent  for  past  offenses  of  a  character 
similar  to  the  one  now  before  us,  though  not  so  flagrant; 
and  that  his  attention  has  heretofore  been  directly  called  to 
his  disregard  of  his  duties  as  an  attorney  in  this  respect.  In 
a  petition  for  a  re-hearing  he  used  disrespectful  language 
towards  a  Commissioner  of  the  Court  who  had  prepared  the 
opinion  in  the  case,  for  which,  perhaps,  he  should  have 
been  called  to  account  at  the  time;  and  more  recently  we 
were  compelled  to  strike  out  his  brief  in  another  case  for 
disrespectful  language."  t 

The  six  new  accusations  contained  in  the  passages  of       4 
the  disbarment  judgment  just  quoted  are  the  only  fea-    ^^^ 
ture  which  was  not  published  in  advance  in  the   news-  p'T^f^l 
papers    of  The  Southern  Pacific   Company,    as    above  / 

stated.  But  they  were  immediately  taken  up  by  The 
Record-Union  in  the  editorial  of  January  lo,  1895.  and 
were  there  supported  by  the  additional  lie  that  "  and  so 
say  his  fellow  members  of  the  bar  in  San  Francisco.''  J 

And,  also,  as  regards  the  grounds  stated  in  the  judg- 
ment of  disbarment  to  the  effect  that  the  brief  con- 
tained a  ''menace,"  a  "threat,"  an  "assault,"  "boldly 
threatens  them  [the  other  Justices  besides  Harrison] 
with  evil  consequences  to  themselves  if  they  should 
decide  the  appeal  adversely  to  the  appellant,"  "  contains 
a  direct  attempt  to  influence  them  by  threats  of  injury 
unless  they  shall  adopt  his  views  of  the  case,"  "dis- 
tinctly threatened  the  other  members  of  th-e  court  with 
public  infamy  and  disgrace  if  they  did  not  decide  the 
cause  of  Rankin  vs.  Newman  in  his  favor."  As  regards 
all  such  grounds  the  judgment  of  disbarment  was  not 
only  pure  invention  and  falsehood  and  trickery,  but  was 

■••'  See  the  Appendix,  p.  26. 
t  See  the  Appendix,  p.  28. 
\  See  the  Appendix,  p.  36. 


126 

made  without  previous  accusation  or  notice  or  hearing. 
The  nearest  approach  to  such  notice  was  a  verbal  state- 
ment made  by  Wm.   H.   Beatty,  the  Chief  Justice,  at 
the  close  of  the  ?nock  hearing  of  the  citation  which  was 
allowed^  stating  that  in  the  brief  "  You  [the  accused] 
tell  this  Court  plainly  and  explicitly  that  we  must  decide 
this  case  in  your  favor  or  else  we  shall  be  held  to  be 
corrupt/'     Such  a  charge,  even  if  true,  would  not  have 
been  the  charge  of  a  "menace"  or  "threat"  or  "assault." 
But,  over  and  above  this,  "  notices  must  be  in  writing  " 
(C.  C.  P.,  Sec.  loio;  Constitution  Art.   22,  Sees,  i,  11.) 
It  is  this  trumped  up  and  feigned  ground  that  consti- 
tutes the  chief  of  the  pretended  grounds  for  the  disbar- 
ment, and  by  Wm.  H.  Beatty,  the  Chief  Justice,  it  was 
expressly  (though  falsely)  declared  to  be  the  sole  ground 
on  which  he  based  his  concurrence.*     This    new   and 
trumped  up  accusation   as  stated  in    the  judgment  of 
disbarment  may  be  seen  in    the  Appendix  on    p.    23, 
through  all  of  pages  27  and  28  and  from  pages  29  to  32. 
As  already  mentioned,  all  these  new  accusations  to 
the   effect   that   the    brief    contained    a    "  menace,"    a 
"  threat "  and  an  "  assault  "  were  published  in  advance 
in  the  newspapers  of  The  Southern  Pacific  Company 
and  were  repeated  by  Robert  Y.  Hayne  at  the  hearing 
of  the  citation,  and  nowhere  else  did  any  such  charge 
appear  until  those  accusations   appeared  in  the  judg- 
ment of  disbarment  itself. 

The  purpose  with  which  those  new  accusations  were 
inserted  in  the  judgment  of  disbarment  was  of  course 
to  bolster  and  cover  the  outrage  by  deceiving  the  pub- 
lic into  supposing  that  there  was  ground  for  the  dis- 
barment; and  it  was  with  the  same  motive  that  those 
—  « 

*See  the  Appendix,  pp.  29-30, 


127 

accusations  were  invented  by  The  Southern  Pacific 
Company  and  published  by  them  in  advance  in  their 
newspapers,  Tke  Evening  Post  and  The  Record-Union^ 

The  parts  of  the  judgment  of  disbarment,  setting 
out  grounds  of  none  of  which  there  was  hearing  or  no- 
tice, so  nearly  comprise  all  the  grounds  that  if  those  parts 
were  removed  there  would  be  nothing  left  that  could 
deceive  anybody  into  supposing  that  any  ground  what- 
ever actuall}^  existed.  But  even  if  those  new  accusa- 
tions, accusations  appearing  for  the  first  time  in  the 
judgment  of  disbarment,  comprised  only  part  of  the 
grounds,  their  effect  would  be  to  make  the  disbarment 
unlawful  to  the  extent  of  being  in  law  absolutely  void. 

A  judgment  made  without  notice  or  hearing  as  to 
any  of  its  grounds,  is  made  without  notice  or  hearing, 
and  is  in  law,  as  well  as  in  natural  justice,  wrongful 
to  the  extent  of  being  utterly  void.f 

In  Ziegler  vs.  S.  &  N.  Ala.  R.  R.  Co.,  58  Ala.,  599, 
the  rule  was  stated  thus: 

"Due  process  of  law  implies  the  right  of  the  per- 
son affected  thereby  to  be  present  before  the  tri- 
bunal w^hich  pronounces  judgment  upon  the  ques- 
tion of  life,  liberty  or  property,  in  its  most  com- 
prehensive sense;  to  be  heard,  by  testimony  or 
otherwise,  and  to  have  the  right  of  controverting, 
by  proof,  every  material  fact  which  bears  on  the 
question  of  right  in  the  matter  involved.  If 
any  question  of  fact  or  liability  be  conclusively 
presumed  against  him,  this  is  not  due  process  of 
law." 

A  judgment  which  is  unlawful  to  the  extent  of  being 
void  in  any  of  its  grounds,  as  where  one  of  the  Judges 

*See  the  Appendix,  pp.  6-21. 

\Ziegler  vs.  S.  (2f  N.  Ala.  R.  /?.  Co.,  58  Ala.,  599.     Meyers  v.  Shields,  61  Fed.  Rep.,  718. 
Mead  v.  Larkin,  66  Ala.,  87.     Greene  v.  Briggs,  i  Curtis.  C.  C,  331. 


128 

was  interested   as  regards   that  particular   ground,  is 
void  throughout.^' 

In  the  case  last  cited,  the  Court  said  (at  p.  344): 

"The  judgment  being  single,  and  grounded 
upon  the  two  facts  as  explained  by  other  evidence, 
we  are  not  at  liberty  to  assume  that  either  of  these 
facts,  with  its  concomitant  circumstances,  was 
deemed  unessential  to  the  result;  and  therefore,  if 
Porter  was  disqualified  from  sitting  to  try  the 
charge  as  it  stood  upon  the  refusal  to  sign  his  or- 
der, it  was  fatal  to  the  judgment,  though  it  be  ad- 
mitted that  he  was  a  lawful  trier  on  the  other 
specification." 

A  judgment  which  should  be  considered  unlawful 
to  the  extent  of  being  void  as  regards  any  influence, 
as  where  one  of  the  judges  taking  part  in  the  decision 
was  interested,  is  unlawful  and  void  throughout,  no 
matter  how  many  disinterested  judges  also  took  part  in 
the  decision .f 

In  Queen  v.  Justices  of  Hertfordshire  6  Q  B.  753,  a 
decision  made  by  twelve  Justices  was  held  unlawful 
and  void  because  one  of  them  was  interested.  In  de- 
ciding the  case  Lord  Denman  said: 

*  *  *  u  ^g  cannot  enter  into  an  analysis  of 
the  different  motives  which  may  have  produced  the 
decision;  it  is  enough  to  say  that  a  single  inter- 
ested person  has  formed  part  of  the  court."  ^  ^  "^ 

A  judgment  made  without  previous  notice  and  a 
hearing  is  equally  unlawful  to  the  extent  of  being  ab- 
solutely void,  even  though  the  truth  of  the  accusation 
is  personally  known  by  the  judges. J 

■■•Stockwell  V.  Township  Board  of  White  Lake,  22  Mich.,  341,  344. 

t  Queen  v.  Justices  of  Hertfordshire,  6  Q,  B.  753.    Meyers  v.  Shields,  61  Fed.  Rep.  728. 
X  Capelv.  Child  2  Cr.  &/.  558-     Fletcher  v.  Dainger field  20  Cal.  430.     The  Railroad  Tax 
Cases  13  Fed.  Rep.  765.     Rex  v.  Chancellor  i  Strange  565. 


129 

In  Capel  v.  Child  2  Cr.  &  J.  558,  the  Court  said: 

*  *  '^'-  "  According  to  every  principle  of  law  and 
equity,  such  judgment  could  not  be  pronounced, 
or,  if  pronounced,  could  not  for  a  moment  be  sus- 
tained, unless  the  party  in  the  first  instance  had 
the    opportunity   of  being  heard  in    his    defense. 

*  *  :^  ''When  the  bishop  proceeds  on  his  own 
knowledge,  I  am  of  opinion  also  that  it  cannot 
possibly,  and  within  the  meaning  of  this  act,  ap- 
pear to  the  satisfaction  of  the  bishop  and  of  his 
own  knowledge,  unless  he  gives  the  party  an 
opportunity  of  being  heard,  in  answer  to  that 
which  the  bishop  states  on  his  own  knowledge 
to  be  the  foundation  on  which  he  proceeds.  *'*'  *  * 
Is  it  not  a  common  principle  in  every  case  which 
has  in  itself  the  character  of  a  judicial  proceed- 
ing, that  the  party  against  whom  the  judgment  is 
to  operate  should  have  an  opportunity  of  being 
heard  ?" 

In  The.  Railroad  Tax  Cases  13  Fed.  Rep.  765  (de- 
cided in  1882  by  the  United  States  Circuit  Court  for  the 
District  of  California) ,  all  that  part  of  the  Constitution 
of  California  providing  for  the  taxation  of  railroad  prop- 
erty was  set  aside,  upon  the  ground  that  it  did  not 
expressly  give  the  railroad  corporations  the  right  to  a 
hearing.  In  giving  the  decision  Judg^e  Sawyer  quoted 
as  an  authority  the  following  language  of  Fortescue,  J., 
in  the  English  Court  of  King's  Bench  in  the  case  of 
Rex  V.  Chancellor  i  Strange  565  (decided  in  1718): 

'^  Besides,  the  objection  for  want  of  notice  can 
never  be  got  over.  The  laws  of  God  and  man 
both  give  the  party  an  opportunity  to  make  his 
defense.  I  remember  to  have  heard  it  observed  by 
a  very  learned  man  upon  such  an  occasion,  that 
even    God    himself   did    not    pass   sentence  upon 


I30 

Adam  before  he  was  called  upon  to  make  his 
defense.  Adam  (says  God) ,  where  art  thou  ?  Hast 
thou  not  eaten  of  the  tree  whereof  I  commanded 
thee  that  thou  shouldst  not  eat?  And  the  same 
question  was  put  to  Eve  also." 

A  judgment  disbarring  an  attorney,  if  made  without 
previous  notice  of  the  grounds  and  opportunity  to  be 
heard,  is  unlawful  to  the  extent  of  bein  absolutely 
void.* 

In  People  ex  r^/.  Field  v.  Turner^  i  Cal.,  150,  in  the 
case  of  Stephen  J.  Field,  the  Supreme  Court  said: 

*  *  *  "But  where  an  attorney  is  proceeded 
against  with  this  object,  he  is  entitled  to  have  no- 
tice of  the  charges  against  him,  and  an  opportunity 
to  make  his  defense.  This  is  not  only  the  dictate 
of  natural  justice,  and  the  uniform  practice  in  such 
cases,  but  it  has  been  carried  into  an  express  adju- 
dication."    *     *     * 

A  judgment  made  without  previous  notice  of  its 
grounds  and  an  opportunity  to  be  heard,  is  violative  of 
natural  right,  of  natural  justice,  is  in  law  absolutely 
void  and  entitled  to  no  respect  in  any  court. 

In  Hovey  v.  Elliott^  167  U.  S.  (decided  in  1897)  ^^ 
Supreme  Court  of  the  United  States  said  (at  pp.  413- 
414): 

"^  '•*"  "The  fundamental  conception  of  a  court 
of  justice  is  condemnation  only  after  hearing.  To 
say  that  courts  have  inherent  power  to  deny  all 
right  to  defend  an  action  and  to  render  decrees 
without  any  hearing  whatever  is,  in  the  very  nat- 
ure of  things,  to  convert  the  court  exercising  such 
an  authority  into  an  instrument  of  wrong  and  op- 
pression, and  hence  to  strip  it  of  that  attribute  of 

*  People  ex  rel.  Field  v.  Turner,  i  Cal.,  143,  150.  People  ex  rel.  Field  v.  Turner,  i  Cal., 
188-9.     Fletcher  V.  Daingerfield,  20  Cal.,  430. 


131 


justice  upon  which  the  exercise  of  judicial  power 
necessarily  depends. 


''The  principle  stated  in  this  terse  language  lies 
at  the  foundation  of  all  well  ordered  systems  of 
jurisprudence.  Wherever  one  is  assailed  in  his 
person  or  his  property,  there  he  may  defend,  for 
the  liability  and  the  right  are  inseparable.  This 
is  a  principle  of  natural  justice,  recognized  as  such 
by  the  common  intelligence  and  conscience  of  all 
nations.  A  sentence  of  a  court  pronounced  against 
a  party  without  hearing  him,  or  giving  him  an 
opportunity  to  be  heard,  is  not  a  judicial  deter- 
mination of  his  rights  and  is  not  entitled  to  respect 
in  any  other  tribunal." 

In  Baggs  Case^  ii  Coke,  99,  (decided  by  Sir  Edward 
Coke  in  16 16)  the  removal  of  a  burgess  of  Plymouth 
was  held  void,  and  a  mandamus  issued  to  restore  him, 
and  the  Court  said,  among  other  things: 

"And,  although  they  have  lawful  authority  either 
by  charter  or  prescription  to  remove  anyone  from 
the  Freedom,  and  that  they  have  just  cause  to  remove 
him,  yet  if  it  appear  by  the  return,  that  they  have 
proceeded  against  him  without  hearing  him  answer 
to  what  was  objected,  or  that  he  was  not  reason- 
ably warned,  such  removal  was  void,  and  shall  not 
bind  the  party.  *  *  *  And  such  removal  is 
against  justice  and  right." 

In  Violett  vs.  Alexandria^  92  Va.  (decided  in  1896), 
the  Court  said  (at  p.  571): 

"  It  has  often  been  pointedly  and  emphatically 

declared  that  it  is  contrary  to   the  first  principles 

of  justice  that  one  should  be  condemned  unheard." 

In  Page  vs.  Hardin,  8  B.  Mon.  (decided  in  1848)  the 


132 

removal  of  a  Secretary  of  State  by  the  Governor  was 
held  unlawful,  and  the  Court  said  (at  p.  672): 

"  The  Secretary  being  removable  for  breach  of 
good  behavior  only,  the  ascertainment  of  the 
breach  must  precede  the  removal.  In  other  words, 
the  of&cer  must  be  convicted  of  misbehavior  in 
office.  And  we  shall  not  argue  to  prove  that  in 
a  government  of  law  a  conviction  whereby  an 
individual  may  be  deprived  of  valuable  rights  and 
interests,  and  may,  moreover,  be  seriously  affected 
in  his  good  name  and  standing,  implies  a  charge 
•  and  trial  and  judgment,  and  the  opportunity  of 
defense  and  proof." 

In  Black  vs.  Blacky  4  Bradf.  Sur.   (decided  in  1857) 
the  Court  said  (at  p.  205): 

"  Notice  of  some  kind  is  the  vital  breath  to  ani- 
mate judicial  jurisdiction  over  the  person.  It  is 
the  primary  element  of  the  application  of  the 
judicatory  power.  It  is  of  the  essence  of  a  cause. 
Without  it  there  cannot  be  parties,  and  without 
parties  there  may  be  the  form  of  a  sentence  but 
no  judgment  obligating  the  person.  I  think  there 
can  be  no  doubt  as  to  the  correctness  of  this  doc- 
trine and  its  foundation  in  natural  right.  It  is 
based  upon  those  principles  of  justice  which  are 
acknowledged  wherever  right  reason  has  sway." 

\\\  Meyers  vs.  Shields^  61  Fed.  Rep.  (decided  in  1894) 
the  Court  said  (at  p.  718): 

"  One  principle  runs  through  all  these  definitions 
[of  due  process  of  law].  Webster  expresses  it 
tersely  when  he  says  :  ^  By  the  "  law  of  the  land  "  is 
meant  the  '*  general  law,"  which  hears  before  it  con- 
demns, which  proceeds  upon  inquiry,  and  reaches 
judgment  only  on  trial.'  The  party  to  be  affected 
by  the  process  which  deprives  him  of  his  life,  lib- 


133 

erty  or  property  must  have  notice  of  the  time  and 
place  of  hearing  in  some  form  and  at  some  time, 
and  must  have  the  privilege  of  being  heard." 

In  the  Railroad  Tax  Cases ^  13  Fed.  Rep.,  Justice 
Field,  in  giving  judgment  in  favor  of  The  Southern 
Pacific  Railroad  Company,  said  (at  pp.  750-752): 

*  *  »<  There  is  something  repugnant  to  all  no- 
tions of  justice  in  the  doctrine  that  any  body  of  men 
can  be  clothed  with  the  power  of  finally  determin- 
ing the  value  of  another's  property,  according  to 
which  it  may  be  taxed,  without  affording  to  him 
an  opportunity  of  being  heard  respecting  the  cor- 
rectness of  their  action.  *  *  "^  We  cannot 
consent  to  any  such  doctrine.  It  conflicts  with 
the  great  principle  which  lies  at  the  foundation  of 
all  just  government,  that  no  one  shall  be  deprived 
of  his  life,  his  liberty  or  his  property,  without  an 
opportunity  of  being  heard  against  the  proceeding. 
The  principle  is  as  old  as  Magna  Char  la  ^  and  is 
embodied  in  all  the  State  constitutions,  and  in  the 
fourteenth  amendment  of  the  federal  constitution. 
♦  :•>  :-:'.  ^^^  "i^y  (j^g  process  of  law  is  meant  one 
which,  following  the  forms  of  law,  is  appropriate 
to  the  case  and  just  to  the  parties  to  be  affected. 
It  must  be  pursued  in  the  ordinary  mode  prescribed 
by  the  law;  it  must  be  adapted  to  the  end  to  be 
attained,  and  it  must  give  to  the  party  to  be  affected 
an  opportunity  of  being  heard  respecting  the  jus- 
tice of  the  judgment  sought.  Without  these  con- 
ditions entering  into  the  proceeding,  it  would  be 
anything  but  due  process.  If  it  touched  life  or 
liberty  it  would  be  wanton  punishment,  or  rather 
wanton  cruelty ;  if  it  touched  property  it  would  be 
arbitrary  exaction." 

In  the  same  case  Judge   Saw^^er  said  (at  pp.  762-3): 
"  No  one,  I  apprehend,  would  for  a  moment  con- 


134 

tend  that  a  man's  life  or  his  liberty  could  be 
legally  taken  away  without  notice  of  the  proceed- 
ing or  without  being  offered  an  opportunity  to  be 
heard,  or  that  a  proceeding  whereby  his  life  or 
liberty  should  be  forfeited  or  permanently  affected^ 
without  notice  or  opportunity  to  be  heard  in  his 
own  defense,  could  by  any  possibility  be  due  pro- 
cess of  law.  In  such  cases  there  could  be  no  just 
conception  of  '  due  process  of  law '  that  would  not 
embrace  these  elements  of  notice  and  opportunity 
to  be  heard.  Any  conception  excluding  these  ele- 
ments would  be  abhorrent  to  all  our  ideas  of  either 
law  or  justice.  If  these  elements  must  enter  into 
and  constitute  an  essential  part  of  due  process  of 
law,  in  respect  to  life  and  liberty,  they  must  also 
constitute  essential  ingredients  in  due  process  of 
law  where  property  is  to  be  taken,  for  the  guaranty 
in  the  constitution  is  found  in  the  same  provision, 
in  the  same  connection,  and  in  the  identical  lan- 
guage applicable  to  all." 

An  opportunity  to  be  heard  after  the  judgment,  in 
no  wise  detracts  from  the  unlawful  and  outrageous 
character  of  such  a  judgment.* 

In  Capel  vs.  Child  2  Cr.  &  J.  the  Court  says: 

:;::}:  u  ^j^j^g^  {^  ^^^g  gg^j^j  jjj  auswcr  to  thc  argu- 
ments at  the  bar,  that  the  party  had  a  right  to 
appeal  to  the  Archbishop.  I  apprehend  the  right 
to  appeal  to  the  Archbishop  makes  no  difference 
in  this  case.  Where  there  is  an  authority  to  pro- 
nounce a  judgment,  and  an  appeal  is  given  from 
that  judgment  when  it  is  pronounced,  the  party 
against  whom  the  judgment  is  pronounced  has  a 
right  to  be  heard  on  the  original  judgment:  he  has 
a  right  to  be  heard  before  the  original  judgment  is 


*  Cap^l  vs.  Child  2  Cr.  &  J.  558.    In  re  Dana  7  Beu.  D.  C.  i.    Meyers  vs.  Shields  61  Fed. 
Rep.  724. 


135 

pronounced,   for   the    purpose   of  preventing   that 
judgment  from  being  pronounced.'' 

In  Meyers  vs.  Shields  6i  Fed.  724  a  certain  tax 
amounting  to  upwards  of  $184,000.00  assessed  against 
a  party,  was  set  aside  by  the  United  States  Circuit 
Court  for  the  Northern  District  of  Ohio,  upon  the 
ground  that  the  law  authorizing  the  tax  was  unconstitu- 
tional in  not  expressly  giving  the  taxpayer  the  right 
to  a  notice  and  hearing  previous  to  the  assessment. 
The  Court  said: 

"  It  [the  tax]  stands  as  a  charge  upon  his  prop- 
erty, a  cloud  upon  the  title  of  his  real  estate,  a 
blot  upon  his  character  as  a  citizen,  and  yet  it  is 
claimed  it  is  '  due  process  of  law  '  because  if  it  is 
sought  to  enforce  collection  of  such  taxes  by  a 
suit  in  court,  the  taxpayer  will  have  notice  of  such 
proceedings,  and  may  then  defend  against  the 
prima  facie  case  of  guilt  and  indebtedness  arbi- 
trarily found  against  him.  All  the  other  sum- 
mary remedies  for  collection  provided  by  law  are 
open  to  the  treasurer,  and  may  at  any  time  be 
enforced;  and  unless  the  taxpayer  assumes  the 
burden  of  removing  the  cloud  upon  his  title  and 
the  lien  upon  his  property  by  affirmative  action, 
they  stand  as  a  menace  to  his  credit  and  right  of 
possession  of  his  property,  and  as  ^  due  process  of 
law,'  because  of  his  right  to  notice  and  defense, 
provided  the  treasurer  chooses  to  resort  to  the  rem- 
edy of  a  suit  in  court.  This  is  not  the  right  to 
appear  and 'make  defense  at  the  time  when  it  is 
most  valuable  and  efficient.  It  is  a  right  to  defend 
after  judgment  and  conviction." 

If  the  statute  were  silent  upon  the  subject  of  the 
right  to  a  previous  notice  and  an  opportunity  to  be 
heard,  it  would  give  such  right  by  necessary  implication.* 

*  Capel  vs.  Child,  2  Cr.  &  J.  558.  Chase  vs.  Hathaway,  14  Mass.,  222.  Mead  vs.  Larkin, 
66  Ala..  88. 


136 

In  Capel  vs.  Child,  2  Cr.  &  J.  the  Court  said: 

*  ♦  ♦  ''does  not  this  import  inquiry  and  a 
judgment  as  the  result  of  that  inquiry?  *  *  * 
It  is  in  form  a  judgment;  it  is  in  effect  and  conse- 
quence a  judgment.  It  appears  to  me,  therefore, 
considering  the  principles  of  justice,  that  this  con- 
struction of  the  act  could  hardly  be  more  neces- 
sary, if  it  had  been  absolutely  required  by  the  lan- 
guage of  the  act  that  a  previous  summons  should 
be  issued.'' 

In  Chase  vs.  Hathaway y  14  Mass.,  the  Court  said: 

"But  we  are  of  opinion  that,  notwithstanding 
the  silence  of  the  statute,  no  decree  of  a  probate 
court  so  materially  affecting  the  rights  of  property 
and  the  person  can  be  valid,  unless  the  party  to  be 
affected  has  had  an  opportunity  to  be  heard  in  de- 
fense of  his  rights. 

"It  is  a  fundamental  principle  of  justice  essen- 
tial to  every  free  government,  that  every  citizen 
shall  be  maintained  in  the  enjoyment  of  his  liberty 
and  property,  unless  he  has  forfeited  them  by  the 
standing  laws  of  the  community,  and  has  had 
opportunity  to  answer  such  charges  as,  according 
to  those  laws,  will  justify  a  forfeiture  or  suspen- 
sion of  them.  And  whenever  the  legislature  has 
provided  that,  on  account  of  crime  or  misfortune, 
the  public  safety  or  convenience  demands  a  sus- 
pension of  these  essential  rights  of  the  individual, 
and  has  provided  a  judicial  process  by  which  the 
fact  shall  be  ascertained,  it  is  to  be  understood  as 
required  that  the  tribunal,  to  which  is  committed 
the  duty  of  inquiring  and  determining,  shall  give 
opportunity  to  the  subject  to  be  heard  in  support 
of  his  innocence  or  his  capacity." 

In  Mead  vs.  Latkm,  66  i\la.,  88,  the  Court  said: 

♦  *     "Whenever,  in   a  judicial  proceeding,    a 


137 

judgment  is  rendered  by  a  court  of  justice,  affect- 
ing the  liberty,  or  condemning  the  property  of  any 
person,  he  is  entitled  to  have  reasonable  notice  of 
such  procedure,  trial  or  contest.  *  *  *  Where 
the  statute  is  silent,  as  to  notice  in  such  cases,  it 
will  be  supplied  by  necessar}^  implication." 

The  same  principle  was  declared  b}^  Crompton  J.  in 
Queefi  vs.  Archbishop  of  Canterbury^  i^ Ellis  &  Ellis, 
545,  in  the  following  words: 

*  =^  "Where  a  statute  of  this  kind  gives  an 
appeal,  it  gives,  by  implication,  a  right  to  be  heard 
upon  that  appeal."     *     '^' 

Here  there  may  be  conveniently  seen  the  difference 
between  the  administration  of  justice  to  a  powerful  and 
wealthy  corporation  and  to  an  ordinary  citizen.  In  the 
Railroad  Tax  Cases ^  13  Fed.  Rep.,  the  Circuit  Court 
of  the  United  States  for  the  District  of  California,  by 
Justice  Field  and  Judge  Sawyer,  in  1882,  set  aside  at 
the  suit  of  The  Southern  Pacific  Railroad  Compan^^  all 
that  part  of  the  Constitution  of  California,  providing  for 
taxing  railroad  property,  and  oyie  ground  was  that 
there  was  no  express  provision  for  notice  and  hearing. 
For  the  benefit  of  that  corporation  and  its  wealthy  and 
powerful  allies,  the  rule  of  law  was  ignored,  that  where 
no  provision  for  notice  and  a  hearing  is  made  ex- 
pressly, the  right  to  notice  and  a  hearing  is  given  by 
implication.  In  the  case  stated  in  this  paper,  Mrs. 
Fanny  Levinson,  Julia  Levinson  and  Ada  Levinson, 
citizens  of  the  United  States,  and  their  attorney,  him- 
self a  citizen  of  the  United  States,  have,  been  deliber- 
ately subjected  to  ruinous  judgments  made  upon  false 
grounds  and  after  being  denied  a  hearing — have  been  de- 
nied relief  from  the  actual  commission  of  outrage  upon 


138 

outrage — and  this  has  all  been  instigated  and  supported 
by  the  organization  of  corporations  of  which  The 
Southern  Pacific  Railroad  Company  is  a  part. 

It  may  be  noted  at  this  point  that,  in  law,  it  is  not 
within  the  power  of  a  legislature  in  the  United  States, 
or  even  of  the  people  of  a  State,  to  authorize  a  judg- 
ment to  be  made  without  a  previous  notice  and  an 
opportunity  to  be  heard  upon  every  one  of  its  grounds 
or  elements.* 

The  right  to  be  heard  in  one's  defense  before  being 
subjected  to  an  adverse  judgment  of  a  court — the  right 
to  be  heard  upon  every  ground  upon  which  such  judg- 
ment is  to  be  made — is  plainly  the  fundamental  and 
inalienable  right  of  self  defense,  a  right  so  fundamental 
and  incapable  of  being  surrendered  that  it  is  not  only 
recognized  as  such  in  the  laws  of  all  nations,  but  is 
spontaneously  claimed  and  exercised  to  the  uttermost 
by  every  human  being  and  by  every  animal  as  well. 
It  is  this  fundamental  and  inalienable  right  that,  in  the 
case  here  exhibited,  the  corrupt  and  wicked  authors  of 
the  disbarment  and  of  the  decision  of  the  case  in  which 
the  brief  was  filed,  have  deliberately  and  wickedly 
caused  to  be  by  the  State  of  California  denied  to  the 
disbarred  attorney  and  to  the  three  defenseless  women, 
his  clients. 

9.     No  Truthful  Cause  for  the  Disbarment. 


(I)    That  the  Citation  Stated  No  Cause  for  the  Disbarment  Is  In  Fact 
Admitted  In  the  Judgment  Itself. 

The  insertion  of  so  many  entirely  new  accusations 
in  the  judgment  of  disbarment  is  a  manifest  confession 

•Constitution  of  the  United  States,  Amendments  5,  14.    Hovey  vs.  Elliott,  167  U.  S.  417. 


139 

that  no  sufficient  ground  for  the  disbarment  had  been 
found  in  the  matter  charged  in  the  citation. 

The  trickery  of  supporting  the  disbarment  by  a  "com- 
mittee of  the  Bar  Association  of  San  Francisco",  is 
plainly  another  confession  of  the  same  sort. 


(2)    The  Passage  of  the  Brief  Quoted  in  the  Citation. 

In  his  speech  on  the  judicial  tenure  delivered  in  1853. 
in  the  Alassachusetts  State  Convention,  Rufus  Choate^ 
in  speaking  of  what  is  requisite  in  a  Judge,  said : 

"  And,  finally,  he  must  possess  the  perfect  confi- 
dence of  the  community,  that  he  bear  not  the 
sword  m  vain.  To  be  honest,  to  be  no  respecter  of 
persons,  is  not  yet  enough.  He  must  be  believed 
such."  *  * 

In  Fairfield  Co.  Bar  vs.  Taylor  (60  Conn,  at  p.  17) 
the  Court  said: 

'^  It  is  not  enough  for  an  attorney  that  he  be 
honest.  He  must  be  that  and  more.  He  must  be 
believed  to  be  honest."  *  * 

In  the  case  of  Rex  vs.  Wilkes  (4  Burr.  2545)  Lord 
Mansfield,  in  giving  judgment,  said: 

*  *  *  "  The  matter  deserves  to  be  seriously 
considered.  What  is  determined  upon  solemn 
argument  establishes  the  law,  and  makes  a  prece- 
dent for  future  caees.  *  *  This  will  be  a  prece- 
dent." 

Now  consider  the  passage  of  the  brief  quoted  in  the 
order  citing  the  attorney  to  appear.  The  passage  is 
shown  in  full  on  page  5  of  the  Appendix.  What  is  it 
but  a  proper  statement  of  the  rule  of  law  that  contriv- 


140 

ances  to  put  a  wrongful  influence  upon  judges  to  influ- 
ence their  decisions  are  illegal,  a  proper  statement  of 
the  principle  upon  which  the  rule  is  founded,  and  that 
a  decision  of  the  case  upholding  such  a  contrivance 
would  establish  it  to  be  the  law  that  such  contrivances 
are  permissible  and  of  what  would  follow  as  the  neces- 
sary result  of  having  such  practices  established  as 
lawful  ? 

(3)    The  DeKberate    and    Wicked    Falsification    of   the  Attorney's 

Argument. 

Could  anything  be  plainer  or  more  plainly  proper 
than  the  argument  of  the  brief  which  the  decision  in 
Egerton  vs.  Earl  Broiunlow  w^as  cited  and  quoted  to 
sustain  and  illustrate  ? 

This   is  particularly    shown  on  pages  79-96  above. 

It  is  this  plain  and  manifestly  just  argument 
that,  in  the  judgment  of  disbarment — adopting  the 
identical  invention,  the  identical  arts  and  even  the 
identical  terms  and  phrases  and  tricks  of  expression 
previously  set  out  as  editorials  in  The  Record- Unzofi 
— is  falsified  into  ^'threats,"  "menaces"  and  an 
*'  assault  "  upon  the  court,  as  ''  language  contemptuous 
of  all  the  other  Justices  of  the  Court,  in  that  it  broadly 
intimates  that  they  may  be  improperly  influenced  in 
deciding  said  appeal,  and  boldly  threatens  them  with 
evil  consequences  to  themselves  if  they  should  decide 
the  appeal  adversely  to  the  appellant." 

This  wicked  falsification  of  the  brief  is  carried  out 
with  far  the  greater  skill  and  cunning  in  the  part  of 
the  judgment  of  disbarment  signed  by  five  Justices. 
There,  not  only  is  the  decision  in  Egerton  vs.  Earl 
Brownlow  studiously  ignored,  but  any  allusion  to  the 


141 

principle  of  that  decision,  any  allusion  to  the  great 
rule  of  law  and  great  principle  of  natural  justice 
applied  and  so  remarkably  illustrated  in  that  decision 
— any  such  allusion  is  carefully  avoided. 

In  the  part  written  by  Wm.  H.  Beatty,  the  Chief 
Justice,  the  same  evil  arts  are  wickedly  practiced,  but 
with  far  less  skill.  Equally  with  his  associates  he 
follows  The!  Record- Union  d.ndiQQirQ^ivi\\y  avoids  the  case 
of  Egerton  vs.  Earl  Brownlow^  but  he  does  allude  to 
the  rule  of  law  and  principle  of  justice  which  was 
there  so  finely  exhibited.  He  alludes  to  it  only  to  state 
it  with  gross  and  insolent  and  brutal  falsehood  and 
to  try  to  make  it  appear  ridiculous.  This  occurs  in 
the  following  language: 

"He  claims — and  I  fully  concede  the  claim — that  if  a 
Justice  of  this  court  has  been  a  party,  or  attorney,  or  witness, 
or  in  any  other  manner  so  connected  with  a  cause  which  is 
on  appeal  here  as  justly  to  subject  him  to  criticism,  counsel 
charged  with  the  presentation  of  such  cause  must  be  allowed 
the  same  freedom  of  criticism  as  in  the  case  of  any  other 
person  [See  his  hypocrisy].  But  the  logic  of  this  proposition 
is  that  the  fact  that  such  party  or  witness  is  a  member  of 
this  court  is  wholly  irrelevant ;  it  has  nothing  to  do  with  the 
case  [See  how  dishonestly  he  evades  the  rule  of  law  applied 
in  Egerton  vs.  Earl  Brownlow\.  Mr.  Philbrook,  however, 
does  not  hold  himself  bound  by  the  logic  of  his  proposition 
[See  the  same  dishonest  evasion].  He  does  not  criticise 
Justice  Harrison's  conduct  as  attorne}^  for  Levinson's  ex- 
ecutor the  same  as  if  he  were  not  a  member  of  this  court, 
but  apparently  because  he  is  a  member  of  the  court  [See  the 
same  dishonest  evasion]  he  assails  him  with  the  bitterest 
invective  for  the  purpose  of  giving  point  and  force  to  the 
proposition  to  which  his  whole  argument  tends  [See  the 
same  dishonest  evasion  and  a  wicked  misrepresentation  of 
the  brief]  that  we  cannot  affirm  the  order  of  the  Superior 
Court  without  making  ourselves  participants  of  the  fraud 
which  he  charges,  and  thereby  giving  all  men  reason  to 
know  that  the  courts  of  the  country  are  corrupt. 

"In  this  consists  the  offense,"  etc.* 


*See  the  Appendix,  pp.  29-30. 


142 

''The  proposition  of  law  for  which  Mr.  Philbrook  con- 
tends, viz.,  that,  notwithstanding  such  settlement  may  have 
been  entirely  free  from  fraud,  in  fact  it  must  be  held  fraudu- 
lent in  law — a  constructive  fraud — because  advised  and  wit- 
nessed by  a  gentlemen  who  was  then  a  candidate  for  the 
Supreme  bench  [See  the  maliciously  false  statement  of  the 
principle  applied  in  Egerton  vs.  Earl  Brownlow,  maliciously 
trying  to  make  it  seem  ridiculous],  is  one  which  it  is  open 
for  him  to  argue  [See  the  insolent  hypocrisy ;  the  disbarment, 
of  course,  made  it  impossible  for  the  attorney  to  argue],  and 
since  it  is  involved  in  the  appeal  in  Rankin  vs.  Newman 
[See  the  hypocrisy],  I  express  no  opinion  concerning  it."* 


(4.)    The  False  Use  of  the  Words  "Threat,"  "Menace"  and 

*♦  Assault." 

But  even  if  the  language  of  the  brief  had  been  sus- 
ceptible of  the  meaning  so  falsely  and  wickedly  imputed 
to  it  in  the  judgment  of  disbarment,  viz.,  that  if  the 
case  should  be  decided  for  the  two  Newmans,  the  Jus- 
tices by  whom  such  decision  might  be  made  would  be 
thereby  known  as  corrupt,  even  such  meaning  would 
not  constitute  a  ^^ menace"  or  ''  threat." 

In  Bouviei^'^s  Institutes  (§2234)  it  is  said : 

''  A  menace  or  threat  is  a  malicious  declaration 
of  an  intention  to  do  an  injury  unlawfully  to 
another." 

In  Payne  vs.  Railroad  Company^  13  Lea  (Tenn.), 
321,  a  merchant  sued  a  railroad  corporation  for  destroy- 
ing his  business  by  threats  and  intimidations  to  his 
customers.  He  showed  that  the  corporation  had  an- 
nounced to  its  employees  that  it  would  discharge  any 
of  them  who  should  trade  with  him,  and  that  by  so 
doing  it  had  destroyed  his  business.  The  Court  ruled 
for  the  railroad  company,  upon  the  ground  that  there 

*See  the  Appendix,  p.  33. 


143 

was  no  threat  or  intimidation,  because  the  railroad  com- 
pany had  the  legal  right  to  discharge  its  employees 
irrespective  of  its  motive  in  so  doing.     The  Court  said : 

*  *  "  But  '  threats  and  intimidations '  must  be 
taken  in  their  legal  sense.  In  law  a  threat  is  a 
declaration  of  an  intention  or  determination  to 
injure  another  by  the  commission  of  some  unlaw- 
ful act,  and  an  intimidation  is  the  act  of  making 
one  timid  or  fearful  by  such  declaration." 

The  words  "threat"  and  "menace"  are  identical  in 
meaning;  and  in  all  the  dictionaries  the  meaning  given 
these  words  is  that  stated  in  the  two  authorities  last  above 
quoted.  And  every  person  of  common  intelligence,  if 
he  stops  to  reflect,  will  see  for  himself  that  such  is  the 
meaning  of  the  words. 

Consider  now  the  false,  deceitful  and  dishonest  use 
of  these  words  in  the  judgment  of  disbarment.  Two 
examples  will  sufiice.  In  the  part  signed  by  five  Jus- 
tices, the  language  of  the  brief  is  declared  to  be 

*  *  "a  menace  that  the  decision  of  a  cause  a  certain 
way  will  destroy  or  grealy  injure  the  good  name  of  the  Judge 
who  shall  make  it."* 

vin  the  part  specially  written  by  Wm.  H.  Beatty,  the 
Chief  Justice: 

*  *  "he  distinctly  threatened  the  other  members  of  the 
Court  with  public  infamy  and  disgrace  if  they  did  not  decide 
the  cause  of  Rankin  vs.  Newman  in  his  favor.  >fc  ^  jk 
the  proposition  to  which  his  whole  argument  tends,  that  we 
can  not  affirm  the  order  of  the  Superior  Court  without  mak- 
ing ourselves  participants  of  the  fraud  which  he  charges. "f 

Is  not  that  plainly  a  false,  deceitful  and  wickedly  dis- 
honest use  of  the  words ''menace"   and   "threat"?     We 


*  See  the  Appendix  p.  28. 
t  See  the  Appendix  p.  30. 


144 

may  illustrate  this  very  simply.  Suppose  we  were  to 
say  to  a  man:  "It  is  about  to  rain.  If  you  do  not  hurry 
home,  you  will  be  rained  upon  and  drenched."  By  so 
doing  would  we  be  threatening  and  menacing  the  man 
so  addressed? 

This  peculiarly  false  use  of  the  words  "menace"  and 
"threat"  was  invented  by  The  Southern  Pacific  Com- 
pany and  published  by  them  in  The  Evening  Post  and 
The  Record-  Union  and  was  taken  thence  and  placed  in 
the  judgment  of  disbarment  (See  the  Appendix 
pp.  6-21). 

Now,  consider  also  the  charge  in  the  judgment  of 
disbarment  that  the  language  of  the  brief  was  an  "as- 
sault upon  Justice  Harrison" — "the  outrageous  verbal 
assaults  which  he  has  made  upon  a  member  of  this 
Court." 

In  Pollock  on  Torts  (Webb's  Ed.)  at  p.  254,  it  is  said: 

"Words  can  not  of  themselves  amount  to  an  as- 
sault under  any  circumstances." 

In  Meade^s  Case  (i  Larkin  C.  C,  185)  the  Court  said: 

:H  ♦  '^b^it  no  words  or  singing  are  equivalent 
to  an  assault,  nor  will  they  authorize  an  assault  in 
return." 

In  State  vs,  Davis^  i  Iredell,  127,  (decided  in  1840) 
the  Court  said: 

*  *  "it  is  now  settled  that  no  words  can,  of 
themselves,  amount  to  an  assault." 

In  People  vs.  Lilley  (43   Mich.,   525)  the  Court  said: 

"An  assault  is  defined  to  be  an  inchoate  violence 
to  the  person  of  another,  with  the  present  means 
of  carrying  the  violence  into  effect.     Threats  are 


145 

not  sufficient;  there  must  be  proof  of  violence  ac- 
tually offered." 

In  Smith  vs.  The  State ^  (39  Miss.,  525)  the  Court 
said: 

"Hence  no  words,  of  themselves,  can  amount  to 
an  assault." 

In  connection  with  these  decisions,  see  the  language 
of  the  judgment  of  disbarment  shown  on  page  26  of 
the  Appendix, — ^'  the  outrageous  verbal  assaults  which 
he  has  made  upon  a  member  of  this  Court."  It  is 
into  such  an  idiotic  contradiction  in  terms — "  verbal 
assaults  " — that  these  catspaws  of  The  Southern  Pacific 
Company  have  run  by  abjectly  following  The  Record- 
Union''^ 

And  now,  suppose  that  the  brief  had  said  even  ex- 
plicitly that  if  the  case  should  be  decided  for  the  two 
Newmans,  the  authors  of  the  decision  would  thereby 
be  known  to  be  corrupt.  Even  if  it  had,  would  it  have 
been  anything  less  than  outrage  to  make  that  a  pretext 
for  disbarring  the  author  of  the  brief? 

In  deciding  the  case  oi  Rex  vs.  IVi/kes^  4  Burr ^  2561, 
Lord  Mansfield  said: 

"All  men  can  judge  of  it;  and  would  treat  with 
contempt  the  judgment  of  this  sovereign  Court,  if 
it  could  be  founded  on  so  pitiful  a  prevarication." 

Was  Lord  Mansfield  threatening  and  menacing  him- 
self? Should  he  have  been  impeached  and  removed 
for  so  doing? 

In  Stockwell  vs.  The  Tp.  Board  of  White  Lake  (22 
Mich.,  5so)  the  Court  said: 


*  See  the  Appendix  pp.  lo,  14,  15. 


146 

*  '^  *'the  Court  ought  uot  to  be  astute  to  dis- 
cover refined  and  subtle  distinctions  to  save  a 
case  from  the  operation  of  the  maxim,  when  the 
principle  it  embodies  bespeaks  the  propriety  of  its 
application.  The  immediate  rights  of  the  litigants 
are  not  the  only  objects  of  the  rule.  A  sound  pub- 
lic policy,  which  is  interested  in  preserving  every 
tribunal  appointed  by  law  from  discredit,  impe- 
riously demands  its  observance." 

Here  the  same  question  can  be  put.  In  using  this 
language,  was  the  Supreme  Court  of  Michigan  threat- 
ening and  menacing  itself  ? 

In  Volume  XI  of  the  Works  of  Edmund  Burke  (Lit- 
tle, Brown  &  Co.'s  ed.)  there  may  be  seen  the  following 
passages  in  the  speech  of  that  finished  advocate,  deliv- 
ered at  the  trial  of  Warren  Hastings  in  the  House  of 
Lords: 

At  p.  160: 

"My  Lords,  far  from  us,  I  will  add,  be  that  false 
and  affected  candor  that  is  eternall}^  in  treaty  with 
crime — that  half  virtue  which,  like  the  ambiguous 
animal  that  flies  about  in  the  twilight  of  a  com- 
promise between  day  and  night,  is  to  a  just  man's 
eye  an  odious  and  disgusting  thing.  There  is  no 
middle  point  in  which  the  Commons  of  Great 
Britain  can  meet  tyranny  and  oppression.  No. 
we  never  shall  (nor  can  we  conceive  that  we  ever 
should)  pass  from  this  bar  without  indignation, 
without  rage  and  despair,  if  the  House  of  Com- 
mons shall,  upon  such  a  defense  as  has  been  here 
made,  against  such  a  charge  as  they  have  pro- 
duced, be  foiled,  baffled  and  defeated.  No,  my 
Lords,  we  never  could  forget  it;  a  long,  lasting, 
deep,  bitter  memory  of  it  would  sink  into  our 
minds. 

"My  Lords,  the  Commons  of  Great  Britain  have 


147 

no  doubt  upon  this  subject.  We  came  hither  to 
call  for  justice,  not  to  solve  a  problem;  and  if  jus- 
tice be  denied  us,  the  accused  is  not  acquitted,  but 
the  tribunal  is  condemned.  We  know  that  this 
man  is  guilty  of  all  the  crimes  which  he  stands 
accused  of  by  us." 

At  pp.  180-181: 

"We  call  upon  your  lordships  to  join  us;  and  wt 
have  no  doubt  that  you  will  feel  the  same  sympa- 
thy that  we  feel,  or  (what  I  cannot  persuade  my 
soul  to  think  or  my  mouth  to  utter)  you  will  be 
identiiied  with  the  criminal  whose  crimes  you  ex- 
cuse, and  rolled  with  him  in  all  the  pollution  of 
Indian  guilt  from  generation  to  generation." 

Did  any  one  ever  pretend  that  for  such  language 
Edmund  Burke  ought  to  have  been  utterly  ruined  and 
destroyed  ?  Or  that  he  ought  even  to  have  been  cen- 
sured for  it  ?  Of  course  not.  On  the  contrary,  the 
passages  have  been  printed  in  every  edition  of  his 
works,  and  no  one  ever  thought  of  there  being  anything 
•culpable  in  them. 

In  the  trial  of  Verres,  Cicero  in  one  of  his  most  ad- 
mired orations  said,  addressing  the  Judges: 

"If  this  unheard  of  insolence  of  Verres  is  to 
pass  unpunished,  all  men  will  think,  especiall}^  as 
the  reputation  of  our  men  for  avarice  and  covet- 
ousness  has  been  very  extensively  spread,  that  it 
is  not  his  crime  only,  but  that  of  those  who  have 
approved  of  it." 

(5.)  The  Rank  Dishonesty  and  Chicane  of  the  Languag^e  Used  in  the 
Judgement  of  Disbarment— The  Infamous  Falsehood  that  the 
Brief  ''Threatened"  and  •♦Menaced"  and  "Assaulted"  the  Court. 

To  show  the  extreme  outrage  of  any  of  the  new 
accusations  in  the  judgment  of  disbarment,  it  would 


'    148 

be  enough  to  show  that  it  is  a  new  accusation,  inserted 
without  any  previous  notice  of  it  to  the  accused  and 
without  giving  him  a  hearing  upon  it.  This  has  been 
shown.  And,  as  has  also  been  pointed  out,  the  pre- 
tense as  a  ground  of  the  disbarment  that  the  brief 
threatened  and  menaced  and  assaulted  the  Court  was 
inserted  in  the  judgment  of  disbarment  as  a  new 
accusation,  no  such  accusation  having  been  made  in 
the  citation.  As  already  pointed  out,  it  was  an  inven- 
tion of  The  Southern  Pacific  Company,  published  by 
them  before  the  hearing  of  the  citation,  in  editorials  in 
their  newpapers,  The  Evening  Post  and  The  Record- 
Union, 

It  is  now  proper  to  show  that  all  this  pretense  as  a 
ground  of  the  disbarment  is  a  most  infamous  piece  of 
lying,  and  that  it  is  bolstered  up  by  the  rankest  dis- 
honesty, lying  and  trickery  in  the  judgment  of 
disbarment. 

In  the  first  treatise  upon  logic  that  has  come  down 
to  us,  that  of  Aristotle,  composed  in  the  fourth  century, 
B.  C,  there  are  described  certain  tricks  or  fallacies, 
called  sophisms,  by  means  of  which  language  may  be 
dishonestly  used  to  deceive.  Two  of  the  most  effective 
of  the  tricks  there  described  are  the  two  typical  deduc- 
tive fallacies  the  petitio  principii  (covert  assumption) 
and  ignoratio  elenchi  (irrelevant  argument).  Prof. 
Minto,  in  his  treatise  on  logic,  defines  the  petitio 
principii  as  '^  covertly  taking  for  granted,  as  if  it 
were  true,  some  falsity  necessary  to  the  conclusion 
sought  to  be  established  '';  and  he  says  :  ''  The  only 
remedy  for  covert  assumptions  is  to  force  them  into  the 
light.^'     Prof  Minto  then  says  : 


^^  Ignoratio  Eleiichi,  ignoring  the  refutation,  is 
simply  arguing  beside  the  point,  distracting  the 
attention  by  irrelevant  considerations.  It  often 
succeeds  by  proving  some  other  conclusion  which 
is  not  the  one  in  dispute,  but  has  a  superficial  re- 
semblance to  it,  or  is  more  or  less  remotely  con- 
nected with  it. 

"  It  is  easier  to  explain  what  these  fallacies  con- 
sist in  than  to  illustrate  them  convincingly.  It  is 
chiefly  in  long  arguments  that  the  mischief  is 
done.  *  *  *  A  certain  conclusion  is  in  dis- 
pute, not  very  definitely  formulated  perhaps,  and 
a  mixed  host  of  considerations  are  tumbled  out 
before  us.  If  we  were  perfectly  clear-headed  per- 
sons, capable  of  protracted  concentration  of  atten- 
tion, incapable  of  bewilderment,  always  on  the 
alert,  never  in  a  hurry,  never  over-excited,  abso- 
lutely without  prejudice,  we  should  keep  our 
attention  fixed  upon  two  things  while  listening  to 
an  argument,  the  point  to  be  proved  and  the  neces- 
sary premises.  We  should  hold  the  point  clearly 
in  our  minds,  and  watch  indefatigably  for  the  cor- 
roborating propositions.  But  none  of  us  being 
capable  of  this,  all  of  us  being  subject  to  bewilder- 
ment by  a  rapid  whirl  of  statements,  and  all  of  us 
biased  more  or  less  for  or  against  a  conclusion,  the 
sophist  has  facilities  for  doing  two  things — taking 
for  granted  that  he  has  stated  the  required  prem- 
ises [petitio  principii)^  and  proving  to  perfect 
demonstration  something  which  is  not  the  point  in 
dispute,  but  which  we  are  made  to  mistake  for  it 
{ignoratio  elenchi). 

*  *  "If  we  are  not  familiar  with  the  matter  of 
the  argument,  and  have  but  a  vague  hold  of  the 
words  employed,  we  are  of  course  much  more 
easily  imposed  upon. 

"  The  famous  sophisms  of  antiquity  show  the 
fascination  exercised  over  us  by  proving  some- 
thing, no  matter  how  irrelevant.     If  certain  steps 


in  an  argument  are  sound,  we  seem  to  be  fascinated 
by  them  so  that  we  cannot  apply  our  minds  to  the 
error,  just  as  our  senses -are  fascinated  by  an  ex- 
pert juggler." 

The  judgment  of  disbarment  contains  a  perfect  and 
most  rascally  example  of  the  combined  use  of  both 
the  tricks  thus  described.  The  language  is  made  to 
suggest  and  say  falsely,  with  crafty  and  cunning  indi- 
rection, by  covert  assumption^  that  the  language  in  .the 
brief  meant  that  if  the  case  should  be  decided  for  the 
two  Newmans,  the  Justices  making  the  decision  would 
be  known  to  be  corrupt.  This  was  an  outrageous 
falsehood  to  begin  with.  Upon  this  falsehood  as  a 
foundation,  two  tricks  or  fallacies  are  set  up  and  used 
in  combination.  The  one  is  a  petitio  principii^  a  false 
use  of  the  words  *'threat,"  "  menace  "  and  ''assault,"  a 
covert  assumption  that  to  argue  "  that  the  decision  of  a 
cause  a  certain  way  will  destroy  or  greatly  injure  the 
good  name  of  the  judge  who  shall  make  it"  is  a 
"  menace,"  a  "  threat" — all  for  the  purpose  of  taking^ 
against  the  attorney  who  was  being  so  wickedly 
destroyed,  both  in  his  profession  and  his  good  name,  a 
crafty  and  dishonest  and  wicked  advantage  of  the  prone- 
ness  of  human  beings,  even  those  who  suppose  them- 
selves to  be  educated  and  intelligent,  to  be  duped  by 
false  suggestions  and  covert  assumptions  and  the  false 
use  of  words.  The  other  trick,  used  in  combination 
with  that  just  stated,  is  an  ignoratio  elenchi,  the  irrel- 
evant argument  that  an  attorney  who  seeks  to  win 
cases  by  menacing  and  threatening  the  judges  ought 
to  be  disbarred. 

In  the  part  of  the  judgment  of  disbarment  signed  by 
five  Justices,  the   two  tricks    are  the  more  cunningly 


intermingled  and  masked,  an  example  of  which  may  be 
seen  in  the  following  passage  : 

*  *  "This  is  a  palpable  attempt  to  influence  a  decision 
of  this  Court  by  base  appeals  to  the  supposed  timidity  of  its 
Justices,  and  made,  too,  by  an  officer  of  the  court.  It  is 
intolerable.  It  cannot  be  suffered  by  any  occupant  of  the 
bench  who  has  a  just  sense  of  his  duty  to  the  people  to  pre- 
serve the  due  dignity  of  their  courts  and  the  free  course  of 
justice.  An  attempt  to  influence  a  Judge  through  fear  of 
physical  injury  is  no  graver  an  offense  than  such  an  attempt 
against  his  reputation.  A  high-spirited  man  might  have 
perfect  physical  courage  and  yet  might  possibly,  despite  all 
his  efforts  against  it,  be  to  some  extent  insensibly  affected  by 
dread  of  the  loss  of  his  reputation  and  good  name.  Neither 
attempt  can  be  for  a  moment  countenanced  without  a  mani- 
fest injury  to  the  cause  of  justice.  When  people  come  into 
courts  as  litigants  they  have  the  right  to  expect  the  best 
judgments  of  their  Judges,  uninfluenced  except  by  legiti- 
mate arguments  made  openly  before  them  by  counsel.  And 
clearly  nothing  tends  more  to  disturb  that  impartiality  than 
a  menace  that  the  decision  of  a  cause  a  certain  way  will 
destroy  or  greatly  injure  the  good  name  of  the  Judge  who 
shall  make  it.* 

In.  the  part  expressing  the  concurrence  of  Wm.  H. 
Beatty,  the  Chief  Justice,  the  work  is  more  crude. 
There  is  first  the  irrelevant  argument,  the  ignoratio 
elenchi^  as  follows : 

' '  If  an  attorney  were  to  approach  a  court  or  Judge  with 
the  offer  of  a  bribe  to  decide  a  cause  in  his  favor,  or  if  he 
were  to  menace  a  Judge  with  personal  violence  or  pecuniary 
loss  if  he  decided  against  him,  it  cannot  be  doubted  that  all 
men  would  concede  the  propriety  of  depriving  him  of  his 
privileges  as  an  attorney."     *     *  f 

And  next  he  returns  to  what  is  more  strictly  the 
covert  assumption  that  the  brief  contained  a  **  menace," 
a  *'  threat,''  \\i^  petitio  principii,  as  follows  : 

*  *   "and  if  this  is  so  it  cannot  be  denied  that  some  penalty 
is  incurred  by  an  attorney  who  reinforces  his  argument  by 


*See  the  Appendix,  pp.  27-28. 
t  See  the  Appendix  p.  31. 


152 

announcing  to  the  Court  with  endless  repetition  that  an  ad- 
verse decision  will  make  the  Judges  participants  of  a  fraud 
and  sharers  in  the  infamy  of  its  perpetrators."  * 

And  next  he  mingles  the  two  tricks,  as  follows: 

"It  is  not  necessary,  however,  to  elaborate  this  proposi- 
tion. It  is  plainly  enough  set  forth  in  the  opinion  of  the 
Court  [t.  e.,  the  part  signed  by  five  Justices],  and  does  not 
even  need  exposition,  for  it  must  be  obvious  to  the  meanest 
apprehension  that  threats  or  menaces  of  any  character  ad- 
dressed to  a  Court  as  a  part  of,  or  in  aid  of,  the  argument 
upon  the  law  and  facts  of  a  case  is  an  obstruction  to  the  free 
and  unbiased  consideration  which  every  cause  should  re- 
ceive ;  and  that  if  such  means  of  influencing  the  action  of 
the  Court  should  become  common,  as  they  might  if  allowed 
to  pass  unrebuked,  no  rights  would  remain  secure,  "f 

And  further  on  he  returns  to  the  trickery  of  covert 
assumption,  the  petitio  principii^  as  in  the  following 
language : 

*  *  "He  claims,  of  course,  not  to  have  understood 
until  his  attention  was  called  to  it  by  a  brother  attorney  dur- 
ing a  recess  of  the  court  taken  just  before  the  close  of  his 
argument,  that  he  was  charged  with  having  menaced  the 
Judges  with  au}^  disagreeable  consequences  to  themselves  in 
case  of  an  adverse  decision.  He  asks  us  to  believe  that, 
with  one  of  the  most  offensive  passages  of  his  brief  set  before 
his  eyes  in  the  terms  of  the  citation,  and  with  ten  days  for 
the  careful  reconsideration  which  he  says  in  his  answer  he 
has  given  to  the  matter,  he  never  saw  what  is  patent  to  the 
observation  of  every  one  else. "J 

And  in  the  next  two  paragraphs  he  follows  with  the 
same  trickery  of  covert  assumption. 

The  passages  above  quoted  are  but  examples,  but 
they  illustrate  clearly  all  this  feature  of  the  entire 
judgment  of  disbarment.  It  is  the  malevolent  jugglery 
of  infamous  scoundrels.  The  purpose  of  it  all  was  to 
take  against  the  attorney  who  was   being  so  wickedly 

*See  the  Appendix,  p.  31. 
tSee  the  Appendix,  p.  31. 
\  See  the  Appendix  pp.  31-32. 


153 

outraged  a  wicked  advantage  of  the  proiieness  of  people 
to  be  duped  by  false  suggestions  and  the  false  use  of 
words  and  to  be  deceived,  as  if  fascinated  by  the  tricks 
of  an  expert  juggler,  by  being  shown  something  irrel- 
evant, cunningly  tricked  up  b}^  covert  assumption  into 
a  false  and  deceitful  appearance  of  relevancy.  Notice, 
also,  throughout  the  judgment  of  disbarment,  the  stu- 
dious mixing  up  and  involving  of  the  reasons  given — 
to  use  the  words  of  Prof.  Minto,  "  a  mixed  host  of  con- 
siderations are  tumbled  out  " — the  studious  subjecting 
of  the  reader  to  *'  bewilderment  by  a  rapid  whirl  of 
statements." 

And  in  this  connection,  let  it  be  borne  in  mind  that 
the  language  of  the  brief  which  was  made  the  ground 
of  the  disbarment  was  expressly  based  upon  the  rule 
of  law  and  principle  of  natural  justice  illustrated  by 
the  decision  of  the  case  of  Egerton  vs.  Earl  Brownlow 
4  H.  L.  C  235 — that  the  brief  stated  fully  the  decision 
in  E^erton  vs.  Earl  Brownlow  and  quoted  extensively 
the  language  of  the  judges,  and  compared  the  case 
point  by  point  with  that  case — all  of  which  is  pointed 
out  on  pages  79-96  above.  And  let  it  be  borne  in  mind 
that  that  authority  and  the  rule  of  law  and  of  natural 
justice  thus  urged  in  the  brief,  and  all  that  argument 
— that  all  this  has  been  throughout  studiously  and  with 
infamous  dishonesty  ignored  and  avoided  by  the  authors 
of  the  disbarment. 

In  connection  with  what  is  here  pointed  out,  let  now 
the  judgment  of  disbarment  be  examined.  Is  it  not 
plain  and  indisputable  that  the  pretense  that  the  brief 
threatened  and  menaced  and  assaulted  the  court  is,  not 
only  a  new  accusation  inserted  in  the  judgment  of  dis- 
barment without  previous  notice  or  hearing,  not  only 


154 

the  invention  of  The  Southern  Pacific  Company,  and 
as  such  published  in  advance  as  editorials  in  their  news- 
papers, but  that  it  is  a  carefully  worked  up  piece  of 
most  infamous  lying,  an  infamously  wicked  misrepre- 
sentation of  a  proper  and  just  argument  made  in  the 
brief,  a  falsehood  built  and  bolstered  up  with  the  rank- 
est dishonesty,  lying  and  trickery  in  the  judgment  of 
disbarment  ? 

The  plainly  evident  purpose  with  which  the  deceits 
and  trickeries  in  the  use  of  language  which  have  just 
been  pointed  out  were  inserted  in  the  judgment  of  dis- 
barment was  to  deceive  and  mislead  those  who  should 
read  it  and  thereby  both  to  bolster  the  disbarment  by 
falsely  inducing  the  public  to  suppose  that  it  was  in- 
flicted for  good  cause  and  at  the  same  time  to  divert 
attention  from  the  fraud  and  treachery  and  wicked  use 
of  his  office  as  Associate  Justice  of  the  Supreme  Court 
of  the  State  which  were  being  practiced  by  the  Justice 
Ralph  C-  Harrison  upon  Mrs.  Fanny  Levinson  and  her 
daughters. 

And  it  was  all  adopted,  all  copied,  both  the  idea  and 
the  very  phrases  and  tricks  of  expressions  taken,  and 
the  motive  also,  from  the  editorials  previously  published 
in  The  Record-Union^  the  newspaper  organ  of  the 
gigantic  organization  of  predatory  corporations.  The 
Southern  Pacific  Company,  a  newspaper  organ  pub- 
lished under  the  immediate  supervision  of  Wm.  H. 
Mills,  one  of  the  chief  officers  of  The  Southern  Pacific 
Company. 

(6.)  The  Impossibility  of  the  **Threats,**  **Menaces*'  and  ^'Assaults" 
Charged  in  the  Judgment  of  Disbarment. 

When  the  brief  was  filed  (November  30,  1894)  and 
when  the  disbarment  was  inflicted   (January  5,   1895), 


155 

the  terms  of  offices  of  two  of  the  Justices  (John  J.  De 
Haven  and  Wm.  F.  Fitzgerald)  were  about  to  expire. 
The  day  on  which  the  judgment  was  rendered  was  the 
very  last  day  on  which  either  John  J.  De  Haven  or 
Wm.  F.  Fitzgerald  was  to  act  as  a  Justice  of  the  Su- 
preme Court  of  California.  It  was  therefore  certain 
that  neither  of  those  two  Justices  could  take  any 
part  in  deciding  or  hearing  the  case  in  which  the  brief 
was  filed.  How,  then,  could  the  brief  be  any  threat  or 
menace  to  Justice  John  J.  DeHaven  or  to  Justice  Wm. 
F.  Fitzgerald  or  any  assault  upon  either  of  those  two  ? 
But  the  judgment  of  disbarment  declares  (in  the  part 
signed  by  five  Justices): 

'  "The  objectionable  parts  of  the  said  brief  for  which  re- 
spondeat Philbrook  was  cited  as  aforesaid  consist  mainly  : 
*  *  ^  2d.  Of  language  contemptuous  of  all  the  other 
Justices  of  the  Court  \i.  e.,  oi  all  besides  Harrisori],  in  that  it 
broadly  intimates  that  they  [*'  they  "  includes  De  Haven  and 
Fitzgerald]  may  be  improperly  influenced  in  deciding  said 
appeal,  and  boldly  threatens  them  [including  De  Haven  and 
Fitzgerald]  with  evil  consequences  to  themselves  if  they 
should  decide  the  appeal  adversely  to  the  appellant."* 

And  again: 

"  As  respondent  has,  in  the  same  connection,  assailed  not 
only  all  the  members  of  this  Court,"  etc.f 

And  (in  the  part  specially  written  by  Wm.  H.  Beatty^ 

the  Chief  Justice): 

**  Mr.  Philbrook  did  not  confine  himself  to  an  assault  upon 
Justice  Harrison.  >fi  *  *  He  went  much  further;  he  dis- 
tinctly threatened  the  other  members  of  the  Court  [2.  e.y 
including  De  Haven  and  Fitzgerald]  with  public  infamy  and 
disgrace  if  they  did  not  decide  the  cause  of  Rankin  vs.  New- 
ma7t  in  his  favor. "it 

Compare  this  with  ^sop's  fable  of  the  Wolf  and  the 
Lamb,  given  in  division  21  of  this  chapter. 

■See  the  Appendix  p.  23. 
tSee  the  Appendix,  p.  26. 
JSee  the  Appendix,  p.  30. 


156 

(7-)  The  Brief  Never  in  Fact  Submitted  to  the  Court.  The  lmpos° 
sibility  of  the  "  Threats,"  "  ilenaces  "  and  "  Assaults  "  Charged 
in  the  Judgment  of  Disbarment. 

It  is  to  be  noted  that  the  offense  charged  was  only 
the  filing  of  the  brief  in  the  Clerk's  ofiice.  The  brief 
had  never  been  submitted  to  or  laid  before  the  Court  or 
any  of  the  Justices,  and  the  case  in  which  the  brief 
was  filed  had  not  been  heard  or  even  set  for  hearing. 

In  Bagg'^s  Case  ii  Coke  93  (decided  in  1616)  the 
removal  of  a  burgess  of  Plymouth  was  held  void  for 
various  reasons.,  one  of  which  the  court  stated  as 
follows: 

*^  So  if  he  intends  or  endeavors  of  himself,  or 
conspires  with  others,  to  do  a  thing  against  the 
duty  or  trust  of  his  freedom,  and  to  the  prejudice 
of  the  public  good  of  the  city  or  borough,  but  he 
doth  not  execute  it,  it  is  a  good  cause  to  punish 
him,  as  is  aforesaid,  but  not  to  disfranchise  him. 
*  *  And  the  reason  and  cause  thereof  is,  that 
when  a  man  is  a  freeman  of  a  city  or  borough,  he 
has  a  freehold  in  his  freedom  for  his  life,  and  with 
others,  in  their  politic  capacity,  has  an  inheritance 
in  the  lands  of  the  said  corporation  and  interest  in 
their  goods,  and  perhaps  it  concerns  his  trade  and 
means  of  living  and  his  credit  and  estimation,  and 
therefore  the  matter  which  shall  be  the  cause  of 
his  disfranchisement  ought  to  be  an  act  or  deed, 
and  not  a  conation  or  an  endeavor,  which  he  may 
repent  of  before  the  execution  of  it,  and  from 
whence  no  prejudice  ensues;  and  they  who  have 
offices  of  trust  and  confidence  shall  not  forfeit 
them  by  endeavors  and  intentions  to  do  acts, 
although  they  declare  them  by  express  words, 
unless  the  act  itself  shall  ensue,  as  if  one  who  has 
^  the  keeping  of  a  park  should  say  that  he  will  kill 
all  the  game  within  his  custody,  or  will  cut  down 
so  many  trees  within  the  park,  but  doth   not  kill 


I 


157 

any  of  the  game  nor  cut  down  any  trees,  etc.,  etc., 
etc.  '^  *  But  if  it  is  but  a  conation  or  endeavor, 
without  any  act  done,  in  none  of  those  cases  is  it 
any  cause  of  deprivation."  *  *  (Citing  many 
examples  and  decisions.) 

In  the  fact  that  the  brief  was  never  submitted  to 
or  laid  before  the  Court  or  any  of  the  justices, 
there  may  be  again  seen  the  impossibility  of  the 
"  threats,"  "  menaces,"  and  "  assaults  "  charged  in  the 
newspaper  articles  of  The  Southern  Pacific  Company, 
and  in  the  judgment  of  disbarment.  Compare  this 
with  ^sop's  fable  of  the  Wolf  and  the  Lamb,  given 
in  division  21  of  this  chapter. 


(8.)  The  Use  of  Plain,  Forcible  and  Criminatory  Language  in  Expos- 
ing tlie  Fraud,  Treachery,  Oppression  and  Corrupt  and 
Wicked    Practices  that  Constitute  a  Chief  Feature  of  the  Case. 

A  main  ground  of  the  disbarment,  as  stated  in  the 
judgment,  is  what  is  there  declared  to  be  the  "unbri- 
dled license,"  the  "unwarrantable  language,"  the  "  bit- 
terest invective"  of  the  brief 

That  the  language  of  the  brief  was  plain,  forcible 
and  criminator}'-  is,  in  the  part  of  the  judgment  of  dis- 
barment signed  by  five  Justices,  called  "the  outrageous 
verbal  assaults  which  he  has  made  upon  a  member  of 
this  Court,"*  and,  in  the  part  written  specially  by  Wm. 
H.  Beatty,  the  Chief  Justice,  it  is  called  "  Mr.  Phil- 
brook's  assault  upon  a  member  of  this  Court."t  As 
already  mentioned,  these  terms  were  invented  by  The 
Southern    Pacific    Company    and    published   in     7/2^ 


•See  the  Appendix,  p.  26. 
fSee  the  Appendix,  p.  29. 


158 

Record-Union  on  December  the  13th,  four  days  before 
the  mock  hearing  of  the  citation.* 

In  The  Record-Union  this  ground  for  the  disbarment 
is  based  upon  the  pretense  that  the  conduct  of  Ralph 
C.  Harrison,  discussed  in  the  brief,  was  proper  con- 
duct ;  the  disbarment  was  demanded  as  a  shield  for 
Ralph  C.  Harrison.  And  that  very  position  thus 
taken  in  The  Record-Union^  four  days  before  the  mock 
hearing,  is  followed  with  the  utmost  precision  in  the 
judgment  of  disbarment,  both  in  the  part  signed  by 
five  Justices  (see  the  Appendix,  p.  26)  and  in  that 
written  specially  by  Wm.  H.  Beatty,  the  Chief  Justice 
(Id.  pp.  29,  32-34). 

This  feature  of  the  brief  is  one  of  the  chief  elements, 
which,  in  the  editorials  in  The  Record-Uniofi  and  as 
taken  thence  and  placed  in  the  judgment  of  disbar- 
ment, has  been  used  to  construct  the  infamous  false- 
hood that  the  brief  threatened  and  menaced  and 
assaulted  the  Court. 

In  the  part  of  the  disbarment  judgment  signed  by 
five  Jiistices  all  this  may  be  seen  in  the  following 
language  (Appendix,  pp.  26,  27,  28  ): 

*  *  "he  has  been  unable  to  show  any  ground,  any 
decent  pretext  for  the  outrageous  verbal  assaults  which  he 
has  made  upon  a  member  of  this  Court.  Nothing  appears 
in  connection  with  the  transaction  so  often  alluded  to  in  the 
brief  which  places  Justice  Harrison  in  any  other  light  than 
that  of  an  upright  and  honorable  lawyer,  faithfully  attend- 
ing to  the  interests  of  his  client,  and  advising  him  according 
to  his  best  judgment.  ^H  >^  *  The  parts  of  the  brief  to 
which  we  have  alluded  are  therefore  contemptuous  and  un- 
bearable and  entirely  unwarranted  under  any  claim  of  free 
speech.  *  *  *  "W'hen  there  is  such  unwarrantable  lan- 
guage it  is  manifest  that  it  was  used  because  the  person 
assailed  was  a  Justice  of  this  Court,  and  with  intent  to  com- 
mit a  contempt  of  this  Court.     ^     * 


♦See  the  Appendix,  pp.  10-15,  also  pp.  16-21. 


159 

*  *  "  This  is  a  palpable  attempt  to  influence  a  decision 
of  this  Court  by  base  appeals  to  the  supposed  timidity  of  its 
Justices,  and  made,  too,  by  an  officer  of  the  Court.  It  is  in- 
tolerable. It  cannot  be  suflfered  by  any  occupant  of  the 
bench  who  has  a  just  sense  of  his  duty  to  the  people  to  pre- 
serve the  due  dignity  of  their  courts  and  the  free  course  of 
justice.  [All  this  is  then  with  great  cunning  worked  up  and 
up  and  up  until  the  climax  is  stated  thus  (Appendix,  p,  28)]: 
and  clearly  nothing  tends  more  to  disturb  that  impartiality 
than  a  menace  that  the  decision  of  a  cause  a  certain  way 
will  destroy  or  greatly  injure  the  good  name  of  the  Judge 
who  shall  make  it." 

In  the  language  last  quoted  there  can  be  seen  the 
whole  structure,  from  foundation  to  top,  of  the  infamous 
falsehood  that  the  brief  threatened  and  menaced  and 
assaulted  the  Court.  And  there  too  can  be  seen  the 
purpose  of  the  whole  infamous  structure,  namely,  to 
shield  the  infamous  scoundrel  Ralph  C.  Harrison.  The 
basis  of  the  whole  structure  is  the  false  pretense  (a  pre- 
tense set  up  without  any  investigation  or  honest  re- 
view of  the  case)  that  there  was  no  foundation  for  the 
argument  of  the  brief.  Upon  that  false  pretense  as  a 
basis^  and  for  the  purpose  of  diverting  attention  from 
its  falsity,  there  is  erected,  by  means  of  the  deceits 
and  trickeries  in  the  use  of  language  which  have  been 
already  reviewed,  the  cunning  structure  of  infamous 
falsehood  that  the  \>x\.^i  threatened  din^  menaced  2M^  as- 
saulted the  Court. 

The  same  thing  can  all  be  seen  and  with  equal  dis- 
tinctness in  the  part  of  the  disbarment  judgment  writ- 
ten specially  by  Wm.  H.  Beatty,  the  Chief  Justice.* 
There,  too,  that  whole  structure  of  infamous  falsehood 
and  trickery  can  be  seen  from  bottom  to  top,  and  also 
the  motive  with  which  it  was  erected,  namely,  to  shield 
the  infamous  scoundrel  Ralph  C.  Harrison. 

*See  the  Appendix,  pp.  29-30  and  pp.  32-34. 


i6o 

In  considering  the  propriety  of  the  plain,  forcible  and 
criminatory  language  of  the  brief,  it  should  be  borne  in 
mind  what  the  case  was.  It  is  stated  at  length  on 
pages  16-59  and  pages  79-106  above. 

Who  ever  heard  of  honest  men  objecting  to  plain, 
forcible  and  criminatory  language  in  exposing  and 
characterizing  fraud,  treachery,  corrupt  and  wicked 
practices  and  oppression  practiced  upon  the  defence- 
less and  by  those  from  whom  care  and  protection  of 
those  defenceless  persons  was  especially  due?  And 
who  ever  heard  of  such  an  objection  in  a  case  of  so 
extreme  wrong  and  outrage? 

It  is  worthy  of  notice  that  the  judgment  of  disbar- 
ment cites  no  precedent. 

On  the  contrary,  the  right  and  the  duty  to  use  such 
language  in  such  a  case  are  plain  and  have  often  been 
declared. 

In  Blair's  Lectures  on  Rhetoric  and  Belles  Letires^ 
in  the  Lecture  on  "  Eloquence  of  the  Bar,"  it  is  said: 

''  A  proper  degree  of  warmth  in  pleading  a  cause 
is  always  of  use.  *  *  An  advocate  personates 
his  client ;  he  has  taken  upon  himself  the  whole 
charge  of  his  interests  ;  he  stands  in  his  place. 
It  is  improper,  therefore,  and  has  a  bad  effect 
upon  the  cause,  if  he  appears  indifferent  and  un- 
moved, and  few  clients  will  be  fond  of  trusting 
their  interests  in  the  hands  of  a  cold  speaker." 

And  a  little  further  on,  in  the  same  Lecture,  the 
advocate  is  advised  to  adopt  the  practice  of  *'  reserving 
his  zeal  and  his  indignation  for  cases  where  injustice 
and  iniquity  are  flagrant." 

Charles  Sumner,  in  his  well-known  eulogy  in  the 
Senate,  on  the  character  of  Thaddeus  Stevens,  said  : 


i6i 


*  *  ''  he  used  not  only  argument  and  history, 
but  all  those  other  weapons  by  which  a  bad  cause 
is  exposed  to  scorn  and  contempt.  *  *  Speech 
was  with  him  at  times  a  cat-o'-nine-tails,  and  woe 
to  the  victim  on  whom  the  terrible  lash  descended. 

"  Does  any  one  doubt  the  justifiableness. of  such 
debate?  Sarcasm,  satire,  and  ridicule  are  not 
given  in  vain.  They  have  an  office  to  perform  in 
the  economies  of  life.  They  are  faculties  to  be 
employed  prudently  in  support  of  truth  and  jus- 
tice. A  good  cause  is  helped,  if  its  enemies  are 
driven  back  ;  and  it  can  not  be  doubted  that  the 
supporters  of  wrong  and  the  procrastinators 
shrank  often  before  the  weapons  he  wielded.  Soft 
words  turn  away  wrath  ;  but  there  is  a  time  for 
strong  words  as  for  soft  words.  Did  not  the 
Savior  seize  the  thongs  with  which  to  drive  the 
money-changers  from  the  Temple  ?  Our  money- 
changers long  ago  planted  themselves  within  our 
Temple.     Was  it  not  right  to  lash  them  away  ?" 

In  this  disbarment  judgment  the  Supreme  Court  of 
California  has  been  njade  to  stand  alone  in  upholding 
an  infamous  scoundrel,  a  traitor,  a  corrupter  of  courts, 
and  in  denouncing  his  exposure  as  a  crime.  Except 
here,  no  court,  so  far  as  the  writer  is  aware,  was  ever 
so  wicked  as  to  make  it  criminal  to  use  strong  language 
in  exposing  and  denouncing  wickedness  and  oppression. 
In  the  trial  of  Warren  Hastings  in  the  House  of  Lords 
the  attorneys  who  represented  the  accused  made  the  ob- 
jection, and  Edmund  Burke  then  answered  them  as 
follows: 

*"  We  are  not  acquainted  with  the  urbanity  and 
politeness  of  extortion  and  oppression,  nor  do  we 
know  anything  of  the  sentimental  delicacies  of 
bribery  and  corruption.     We  speak  the  language 


l62 


of  truth',  and  we  speak  it  in  the  plain,  simple  terms 
in  which  truth  ought  to  be  spoken." 

:{:  H:  H:  H: 

''  We  know  that  it  is  one  of  the  signs  of  a  cor- 
rupt and  degenerate  age,  and  one  of  the  means  of 
insuring  its  further  corruption  and  degeneracy  to 
give  mild  and  lenient  epithets  to  vices  and  to 
crime.  The  world  is  much  influenced  by  names, 
and  as  terms  are  the  representatives  of  sentiments, 
when  persons  who  exercise  any  censorial  magis- 
tracy seem  in  their,  language  to  compromise  with 
crimes  and  criminals  by  expressing  no  horror  of 
the  one  or  detestation  of  the  other,  the  world  will 
naturally  think  that  they  act  merely  to  acquit 
themselves  in  its  sight  in  form,  but  in  reality  to 
evade  their  duty.  Yes,  my  Lords,  the  world  must 
think  that  such  persons  palter  with  their  sacred 
trust  and  are  tender  to  crimes,  because  they  look 
forward  to  the  future  possession  of  the  same  power 
and  purpose  to  abuse  it  in  the  same  manner  it  has 
been  abused  by  the  criminal  of  whom  they  are  so 
tender. 

*  ♦  ♦  Hs 

^'  We  could  not  use  lenient  epithets  without  com- 
promising with  crime.  We,  therefore,  shall  not 
relax  in  our  pursuits  nor  in  our  language.  No, 
my  Lords,  no,  we  shall  not  fail  to  feel  indignation, 
wherever  our  moral  nature  has  taught  us  to  feel  it, 
nor  shall  we  hesitate  to  speak  the  language  which 
is  dictated  by  that  indignation.  Wherever  men 
are  oppressed  where  they  ought  to  be  protected, 
we  call  it  tyranny,  and  we  call  the  actor  a  tyrant. 
Wherever  goods  are  taken  by  violence  from  the 
possessor,  we  call  it  robbery,  and  the  person  who 
takes  it  we  call  a  robber:  Money  clandestinely 
taken  from  the  proprietor,  we  call  theft,  and  the 
person  who  takes  it  we  call  a  thief.  When  a  false 
paper  is  made  out  to  obtain  money,  we  call  the  act 


i65 

a  forgery.  *  *  All  these  offenses,  without  the 
least  softening,  under  all  these  names,  we  charge 
upon  this  man;  and  we  are  sorry  that  our  lan- 
guage does  not  fm-nish  terms  of  sufficient  force 
and  compass  to  mark  the  multitude,  the  magnitude 
and  the  atrocity  of  his  crimes. 

"  How  comes  it,  then,  that  the  Commons  of  Great 
Britain  should  be  caluminated  for  the  course  which 
they  have  taken  ?  *  *  I  answer,  there  are  two 
very  sufficient  causes,  corruption  and  ignorance. 
The  first  disposes  people  to  a  fellow  feeling  with 
the  prisoner.  When  they  cannot  deny  the  facts 
they  attack  the  accusers — they  attack  their  con- 
duct, they  attack  their  persons,  they  attack  their 
language  in  every  possible  manner.  I  have  said, 
iny  Lords,  that  ignorance  is  the  other  cause  of  this 
calumny.  Ignorance  produces  a  confusion  of  ideas 
concerning  the  decorum  of  life,  by  confoundingr 
the  rules  of  private  society  with  those  of  public 
function.  To  talk,  as  we  here  talk,  in  a  mixed 
company  of  men  and  women,  would  violate  the 
law  of  such  societies,  because  they  meet  for  the 
sole  purpose  of  social  intercourse,  and  not  for 
the  exposure,  the  censure,  the  punishment  of 
crime,  to  all  which  things  private  societies  are 
altogether  incompetent.  In  them  crimes  can  never 
be  regularly  stated,  proved  or  refuted.  The  law 
has  therefore  appointed  special  places  for  such  in- 
quiries, and  if  in  any  of  those  places  we  were  to 
apply  the  emollient  language  of  drawing  rooms  to 
the  exposures  of  great  crimes  it  would  be  as  false 
and  vicious  in  taste  and  in  morals  as  to  use  the 
criminatory  language  of  this  hall  in  drawing  and 
assembling  rooms  would  be  misplaced  and  ridicu- 
lous. 

'^  If  it  should  still  be  asked  why  we  show  suffi- 
cient acrimony  to  excite  a  suspicion  of  being  in 
any  manner  influenced  by  malice  or  a  desire  of 
revenge,  to  this,  my  Lords,  I  answer,  Because  we 


164 

would  be  thought  to  know  our  duty,  and  to  have 
all  the  world  know  how  resolutely  we  are  resolved 
to  perform  it.  The  Commons  of  Great  Britain 
are  not  disposed  to  quar/el  with  the  Divine  Wis- 
dom and  Goodness,  which  has  moulded  up  revenge 
into  the  frame  and  constitution  of  man.  He  that 
has  made  us  what  we  are  has  made  us  at  once  re- 
sentful and  reasonable.  Instinct  tells  a  man  that 
he  ought  to  revenge  an  injury;  reason  tells  him 
that  he  ought  not  to  be  a  judge  in  his  own  cause. 
From  that  moment  revenge  passes  from  the  pri- 
vate to  the  public  hand,  but  in  being  transferred  it 
is  far  from  being  extinguished.  My  Lords,  it  is 
transferred  as  a  sacred  trust  to  be  exercised  for  the 
injured,  in  measure  and  proportion,  by  persons 
who,  feeling  as  he  feels,  are  in  a  temper  to  reason 
better  than  he  can  reason.  Revenge  is  taken  out 
of  the  hands  of  the  original  injured  proprietor, 
lest  it  should  be  carried  beyond  the  bounds  of 
moderation  and  justice.  But,  my  Lords,  it  is  in 
its  transfer  exposed  to  a  danger  of  an  opposite 
description.  The  delegate  of  vengeance  may  not 
feel  the  wrong  sufficiently ;  he  may  be  cold  and 
languid  in  the  p^erformance  of  his  sacred  duty.  It 
is  for  these  reasons  that  good  men  are  taught  to 
tremble  even  at  the  first  emotions  of  anger  and 
resentment  for  their  own  particular  wrongs  ;  but 
they  are  likewise  taught,  if  they  are  well  taught, 
to  give  the  loosest  possible  rein  to  their  resent- 
ment and  indignation  whenever  their  parents,  their 
friends,  their  country  or  their  brethren  of  the  com- 
mon family  of  mankind  are  injured.  Those  who 
have  not  such  feelings,  under  such  circumstances, 
are  base  and  degraded.     These,  my  Lords,  are  the 

sentiments  of  the  Commons  of  Great  Britain. 
•^  ♦  *  * 

''  Oh,  but  we  ought  to  be  tender  towards  his 
personal  character  —  extremely  cautious  in  our 
speech !     We   ought   not  to   let   our   indignation 


i65 

loose  !  My  Lords,  we  do  let  our  indignation  loose  ; 
we  cannot  bear  with  patience  this  affliction  of  man- 
kind. We  will  neither  abate  our  energy,  relax  in 
our  feelings,  nor  in  the  expressions  which  those 
feelings  dictate.  We  feel  for  the  works  of  God 
and  man;  we  feel  horror  for  the  debasement  of 
human  nature,  and  feeling  thus,  we  give  a  loose  to 
our  indignation  and  call  upon  3^our  Lordships  for 
justice.'' 

*  *  *  Hi 

"The  language  I  used  was  not,*as  fools  have 
thought  proper  to  call  it,  offensive  and  abusive ;  it 
is  in  a  proper  criminatory  tone  justified  by  the 
facts  that  I  have  stated  to  you,  and  in  every  step 
we  take  it  is  justified  more  and  more." 

Now  let  the  reader  examine  the  judgment  of  disbar- 
ment by  itself.  Take  the  language  of  the  brief  even  as 
it  is  there  represented,  even  with  the  malicious  and 
shameful  garbling  to  which  it  is  there  subjected  and 
which  is  there  manifest.  When  you  examine  the  lan- 
guage of  the  judgment  of  disbarment  closely  and  criti- 
cally, without  prejudice  and  in  an  independent  spirit, 
and  keeping  in  mind  the  actual  character  of  the  case, 
which  even  there  appears,  despite  the  whitewash  with 
which  the  authors  of  the  disbarment  have  sought  to 
cover  their  associate,  is  it  not  plain,  even  from  the  dis- 
barment judgment  itself,  that  the  language  of  the  brief 
for  which  the  disbarment  was  inflicted  was  a  strictly 
just  and  proper  exposition  of  an  important  feature  of 
the  case. 


« 


The  language  of  the  brief  was  in  every  particular,  in 
€very  respect,  and  from  every  point  of  view,  just  and 
proper  throughout;  and  at  the  hearing  of  the  citation, 
and  when  the  disbarment  judgment  was  made  and  ever 


i66 

since,  every  Justice  concerned  in  the  disbarment  well 
knew,  as  he  still  knows,  that  the  language  of  the  brief 
was  both  just  and  proper. 

If  the  Justices  (besides  Harrison)  had  been  honest 
men  and  free  from  the  domination  of  The  Southern 
Pacific  Company,  then  clearly  the  brief,  written  as  it 
was,  would  have  been  not  only  justly  and  properly 
but  wisely  written. 

And,  if  the^ase  was  to  be  carried  on,  then,  although 
every  Justice  of  the  Court  was  an  infamously  corrupt 
agent  of  The  Southern  Pacific  Company,  still  the 
brief  was  not  only  justly  and  properly  but  wisely 
written,  and  for  the  following  reasons: 

In  the  defense  of  a  widow  and  her  daughters,  I  had 
pursued  a  scoundrel  to  his  lair.  The  greater  the 
strength  of  his  lair  the  greater  his  power  to  do  evil, 
not  only  to  them  but  to  others.  The  greater  was  there- 
fore the  duty  to  expose  him  fully.  It  was  the  plain 
duty  of  all  the  other  Justices  of  the  Court — as  it  ever 
since  has  been  and  still  is  the  duty  of  every  honest 
man — to  uphold  me  in  so  exposing  him. 

To  use  a  saying  of  Lord  Bacon,  the  duties  of  life 
are  more  important  than  life.  It  is  a  first  duty  of  every 
human  being — and  especially  in  such  a  country  as  the 
United  States — to  keep  and  maintain  to  the  uttermost 
and  against  all  odds  the  natural  and  fundamental  rights 
of  a  human  being.  To  have  abated,  in  such  a  case,, 
anything  whatever  of  what  was  said  in  the  brief,  would 
have  been  a  failure  in  that  duty. 

When  the  brief  was  filed,  and  ever  since,  the  Supreme 
Court  of  California,  though  erected  by  the  people  as 
a  temple  ot  justice  and  maintained  by  the  people  for 
the  great  end  of  justice,  was  in  fact,  as  it  still  is,  a  den 


107 

of  thieves.  Of  this  fact  the  proof  is  given  in  these 
pages.  ^ 

And  if  the  brief  had  been  composed  in  mild,  neutral 
language,  if  it  had  not  been  written  substantially  as  it 
was,  the  common  practice  would  have  been  followed;  a 
false  judgment,  couched  in  cunning,  crafty,  tricky,  dis- 
honest language  would  have  ended  the  case  with  a 
denial  of  justice. 

To  use  a  military  term,  the  brief,  written  as  it  was, 
had  the  virtue  of  being  an  effective  reconnaisance  in 
force;  it  compelled  the  corrupt  judges,  enemies  of  man- 
kind, to  reveal  themselves  and  their  position  plainly 
and  unmistakably.  To  use  the  expression  of  Wendell 
Phillips,  already  quoted,  it  was  like  the  spear  of  Ithu- 
riel  that,  driven  to  the  quick,  made  the  Devil  start 
up  in  his  own  likeness.  All  the  Justices  and  their 
principals.  The  Southern  Pacific  Company,  were,  when 
the  brief  was  filed,  mutually  engaged  in  the  same  cor- 
rupt practices.  The  brief  was  so  written  that  the 
newspapers,  in  announcing  it  to  the  people,  exhibited 
the  Associate  Justice,  Ralph  C.  Harrison,  in  his  real 
character.  Upon  looking  into  the  case  and  the  brief, 
The  Southern  Pacific  Company  and  the  Justices,  their 
agents,  saw  that  the  case  was  so  clear  that  a  decision 
of  it  could  not  be  so  drawn  up  as  to  whitewash  Associ- 
ate Justice  Ralph  C.  Harrison.  Under  such  circum- 
stances the  brief,  in  laying  the  lash  well  and  properly 
upon  him,  so  hurt  and  surprised  them  all  that  it  drove 
them  for  the  time  out  of  their  usual  self-control  and 
shrewdness;  and  in  their  wicked  frenzy  they  sought 
to  save  their  confederate  by  striking  down  the  advo- 
cate who  had  so  well  exposed  him.  In  so  doing  they 
revealed  themselves  plainly  and  unmistakably  in  their 
actual  character. 


i68 

To  have  driven  such  a  band  of  criminals  to  so  com- 
plete a  self-exposure  has  its  value.  If  it  shall  be 
understood  and  followed  up  by  the  people  it  will  have 
the  greatest  value.  Notwithstanding  the  great  suffer- 
ing it  has  caused  to  me  and  mine,  and  perhaps  is  yet 
to  cause,  I  am  glad  that  the  brief  was  so  well  written. 


(9.)    The  Outrage  of    Assigning  the    Pretended  Groundlessness  of 
the  Brief  as  a  Ground  For  the  Disbarment. 

It  is  also  stated  in  the  judgment  of  disbarment  as  one 
of  its  grounds  that  the  charge  of  fraud  argued  in  the 
brief  was  untrue.  This  ground  is  not  stated  separately, 
but  is  cunningly  interwoven  with  the  other  grounds, 
and  was,  with  the  other  alleged  grounds,  taken  from 
the  editorials  in  The  Recoj'd-  Union,  Reserving  its  par- 
ticular consideration  for  another  point,  it  is  enough  to 
mention  here  that — even  if  the  argument  of  fraud  had 
been  unsound — it  was  nothing  less  than  outrage  to  set 
up  an  alleged  groundlessness  of  the  argument  as  any 
just  cause  for  disbarment.  Does  it  not  happen  in  every 
litigated  case  that  one  of  the  contending  arguments  is 
found  to  be  unsound?  Is  a  lawyer  to  be  disbarred  and 
ruined  because  the  Court  is  not  convinced  by  his  argu- 
ment ?  Is  a  physician  to  be  put  to  death  for  not  being 
infallible  in  his  diagnosis  of  a  case  ?  Indeed,  that  the 
unsoundness  of  a  lawyer's  argument  is  no  ground  for 
his  disbarment  has  been  expressly  decided  by  the  Su- 
preme Court  of  California.  * 


*  Fletcher  vs.  Daingerjiel^^  20  Cal.,  430. 


169 

(10.)    The  Ground  That  No  Apology  Was  Offered. 

In  the  judgment  of  disbarment  it  is  said  (in  the  part 
signed  by  five  Justices):  * 

*  *  "The  respondent  did  not  offer  any  apology  or  make 
any  excuse;  but,  in  his  written  answer  and  in  his  oral  argu- 
ment, he  boldly  contended  that  his  brief  was  unobjectionable 
and  contained  nothing  which  he  had  not  the  right  to  put 
there."*     *     * 

And  in  the  part  written  specially  by  Wm.  H.  Beatty, 
the  Chief  Justice,  it  is  said: 

*  *•  "He  claims  of  course,  never  to  have  understood, 
until  his  attention  was  called  to  it  by  a  brother  attorney 
during  a  recess  of  the  Court  taken  just  before  the  close  of 
his  argument,  that  he  was  charged  with  having  menaced 
the  Judges  with  any  disagreeable  consequences  to  themselves 
in  case  of  an  adverse  decision.     *     jk     * 

*  *  "For  after  devoting  a  part  of  two  days  to  a  vindica- 
tion and  renewal  of  his  assault  upon  Justice  Harrison  he  in- 
terrupted the  course  of  his  argument  for  a  few  moments  to 
inform  the  Court  that  during  the  recess  a  brother  attorney 
in  whom  he  had  confidence  had  informed  him  that  to  some 
minds  the  language  of  his  brief  might  convey  the  idea  of  a 
threat.  He,  however,  professed  not  to  see  it  even  after  his 
attention  had  been  so  directed  to  the  matter,  but  offered,  if 
the  Court  differed  with  him,  to  cancel  the  offensive  passages 
in  the  briefs  on  file,  and  in  those  he  had  distributed  among 
his  friends. 

"In  my  opinion  this  retraction  was  wholly  insuflficient. 
Mr.  Philbrook  had  not  only  been  informed  by  a  brother 
attorney  of  the  offensive  construction  which  might  be  put 
upon  his  brief,  he  had  been  notified  at  the  opening  of  the 
proceedings  by  the  argument  of  Mr.  Hayne  that  such  was 
the  construction  placed  upon  it  bj^  the  Committee  of  the 
Bar  Association,  and  he  was  plainly  informed  from  the 
bench  that  it  was  understood  in  the  same  way  by  the  Court. 
If  in  spite  of  these  plain  intimations,  he  was  still  un- 
able to  see  what  was  so  clearl}^  apparent  to  others, 
it  ought  to  have  occurred  to  him  that  he  would  do  well 
to  take  further  advice  of  those  in  whom  he  had  confi- 
dence as  to  the  propriety  of  modifying  his  written  answer, 


*  See  the  Appendix  p.  22. 


170 

and  of  introducing  into  that  permanent  record  a  plain  and 
unequivocal  retraction  or  disavowal  of  the  intention  to 
threaten  the  Court.  That  he  has  never  done  so,  nor  offered 
to  do  so,  leaves  his  offense  entirely  unmitigated  in  my  eyes 
and  imposes  upon  the  Court  the  necessity  of  inflicting  the 
due  penalty."*     *     * 

These  passages  breathe  the  same  malevolent  dis- 
honesty, the  same  intentional  and  wicked  falsehood 
as  marks  the  whole  decision.  While  there  was  nothing 
in  the  brief  for  which  to  apologize,  yet,  upon  the  mock- 
ery of  a  hearing  that  was  allowed,  the  attorney,  vainly 
struggling  before  his  wicked  persecutors,  did  tender  all 
the  apology  that  any  but  the  most  unprincipled  rascals 
and  cruel  and  wicked  oppressors  could  have  demanded. 
To  show  this,  the  following  transcript  from  the  notes 
of  the  short-hand  reporter  are  here  given  : 

"  Mr.  Philbrook.  May  it  please  the  Court  : 
At  the  end  of  the  forenoon  session  I  was  kindly 
given  a  suggestion  on  which  I  wish  to  act.  Mr. 
John  A.  Wright,  a  member  of  the  bar,  /i7r  whom  I 
have  ihe  greatest  respect^  made  a  statement  to  me, 
that  he  had  read  this  brief,  and  that  from  his 
standpoint,  while  to  a  logical  mind  the  passage  in 
the  brief,  w^hich  is  quoted  in  full  in  the  citation, 
might  be  susceptible  of  the  construction  that  I 
gave  it,  he  thought  that  to  some  minds  it  might 
convey  the  idea  of  a  threat  and  might  be  deemed 
improper.  I  have  looked  it  over  very  carefully. 
I  cannot  see  it  myself,  but  I  desire  to  say  that  if 
in  the  mind  of  the  Court  that  suggestion  that  he 
gave  to  me  is  correct,  if  I  am  wrong  in  it,  or  in 
any  other  part  of  this  brief,  I  can  only  state  that 
I  am  willing  to  have  it  struck  out  and  out  of  all 
copies  given  to  friends.  I,  of  course,  feel  in  my 
position  here  that  I  cannot  ask  that  or  set  that  up 
as  any  ground  of  defense  to  the  citation.     I  have 


See  the  Appendix  p.  32. 


171 

to  ^o  through  with  my  case  and  submit  it  here  as 
it  is,  and  it  may  not  be  right,  or  it  may  be  right 
to  make  that  statement,  but  I  do  make  it. 

"  The  Chief  Justice  (Wm.  H.  Beatty):  I  will 
state  to  you,  perhaps,  Mr.  Philbrook,  that  you  cer- 
tainly put  a  construction  on  the  language  of  your 
brief  entirely  different  from  that  which  the  Court 
puts  upon  it.  We  put  the  construction  upon  it, 
the  same  construction  Mr.  Hayne  did  in  his 
remarks  about  it  yesterday,  that  you  tell  this 
Court  plainly  and  explicitly  that  we  must  decide 
this  case  in  your  favor,  or  else  we  shall  be  held  to 
be  corrupt. 

"  Mr.  Philbrook  :  Well^  I  can  only  state  that  no 
such  thought  ever  entered  my  mind^  and  give  the 
explanation  of  it  that  I  have  given ^  and  every 
paragraph  in  my  judgment  here  sets  out  a  differ- 
ent phase  of  view  of  that  transaction  that  was 
proper  to  be  argued,  and  also  it  was  my  judgment 
that  if  there  is  anything^  about  the  transaction  (the 
brief)  which  plainly  is  objectionable,  it  should  be 
considered  from  the  inherent  character  of  the 
transaction.  Now,  at  the  same  time,  I  have  tried 
very  carefully — I  do  not  know  how  else  I  can  state 
that ;  I  do  not  know  how  else  I  can  get  that  before 
the  Court — I  feel  bound  in  a  court  of  justice  to  act 
upon  my  conviction  of  the  truth,  and  that  is  as 
any  man  does,  judge  or  otherwise,  and  to  weigh 
the  matter  very  carefully,  and  then  act  on  my 
conviction  of  the  truth.  That  is  my  conviction. 
I  know,  of  course,  that  my  standpoint  may  be  dif- 
ferent, and  all  that,  and  I  will  say  that  if  the  Court 
considers  that  I  am  wrong  in  this,  I  am  frank  to 
say  that  /  regret  very  much  that  anything  in  the 
brief  should  get  i7i  that  would  have  that  construc- 
tion or  be  offensive  in  any  way  unnecessary  to  the 
case  ;  and  if  the  Court  should  be  so  minded  as  to 
take    that    out,  I    am  entirely    willing    to   do    so. 


172 

because  I  think  the  brief  still  gets  the  idea  before 
the  Ourt  which  I  did  wish,  and  still  think,  ought 
to  be  laid  before  the  mind  of  the  Court." 

And  not  so  much  as  an  intimation  that  an 
apology  should  be  made  was  ever  given  until  the  judg- 
of  disbarment  itself^  i.  e.,  not  until  it  was  impossible  to 
comply  with  such  a  suggestion. 

Besides,  when  Wm.  H.  Beatty,  the  Chief  Justice, 
made  the  oral  statement  just  quoted,  1,  struggling 
there  alone  as  I  was,  against  the  unspeakable  wicked- 
ness of  infamous  scoundrels,  immediately  replied  in 
the  words  just  shown. 

It  was  after  this  that  the  judgment  of  disbarment 
was  written  up,  with  the  passages  (quoted  above)  about 
the  refusal  to  make  an  apology. 

But  the  bad  faith  and  wickedness  of  the  authors  of 
the  disbarment  is  further  shown  from  what  followed. 
The  first  intimation  which  I  was  given  that  I  should  have 
placed  in  the  permanent  record  a  plain  and  unequiv- 
ocal retraction  or  disavowal  of  the  intention  to  threaten 
the  Court  was  in  the  judgment  made  against  me.  I, 
however,  had  still  an  opportunity  of  introducing  into 
the  "permanent  record,"  everything  which  in  the 
judgment  of  disbarment  was  said  to  have  been  desired, 
the  opportunity  being  the  petition  for  rehearing.  I 
therefore  immediately  prepared  and  printed  a  petition 
for  rehearing  and  filed  it  within  the  time  provided  by 
the  rules  of  the  Court,  and  as  a  part  of  that  petition 
inserted  a  passage  as  follows : 

■  "  I  now  state  further  what  I  thought  I  expressed 
in  my  answer  to  the  citation,  namely,  I  never  had 
the  slightest  intention  to  make,  either  directly  or 
indirectly,    either    expressly    or    by     implication 


173 

or  intimation,  any  threat  whatever  to  the  Court 
or  to  any  Justice  thereof.  I  never  had  the 
slightest  intention  to  convey  in  any  manner 
any  such  idea  as  that  the  Court  or  any  Justice 
thereof  would  act  corruptly,  or  be  known  or  sup- 
posed to  act  corruptly  from  having  decided  the 
case  or  any  point  in  it  against  my  client  or  against 
my  argument  or  claim.  No  such  intention  and  no 
such  thought  ever  entered  my  mind.  In  framing 
my  language  I  never  had  an  idea  or  a  suspicion 
that  it  would  or  could  be  construed  or  understood 
as  disrespectful  to  the  Court,  or  as  embodying  any 
threat  or  intimation  of  evil  consequences  to  any 
Justice  in  any  contingency  whatever.  And  I  still 
think  that  nothing  of  the  kind  can  be  found  in  the 
brief  by  any  natural  or  fair  construction  or  with- 
out widely  misunderstanding  the  argument  there 
sought  to  be  made. 

"  In  preparing  and  filing  the  brief  referred  to  in 
the  citation,  my  sole  purpose,  intention  and  en- 
deavor was  to  show  as  clearly  as  possible  to  the 
Court  and  to  the  Justices  who  should  take  part  in 
the  decision  the  real  character  of  the  case  and  the 
application  of  the  law  to  it.  Many  of  the  facts  I 
knew  of  my  own  knowledge,  all  were  established 
fully  and  without  contradiction  in  the  record.  The 
case  embodies  what  I  thought  and  still  think  a 
most  outrageous  piece  of  treacherous  trickery  to 
defraud  the  aged  widow  and  her  daughters,  my 
clients,  of  their  estate.  I  had  such  confidence  in 
the  Court  and  in  the  Justices  to  whom  the  brief 
was  addressed  that  I  never  even  doubted  that  their 
main  concern  would  be  to  do  justice,  to  right  the 
wrong.'' 

The  response  to  that  petition  was   made  in  only  two 
days  and  in  only  two  words,  which  were  : 

'*  Rehearing  Denied." 


174 

Is  it  not  plain  that  the  language  of  the  judgment  of 
disbarment  as  to  the  omission  of  the  victim  to  make  an 
apology  was  a  false  and  hypocritical  pretense?  Taking 
the  language  of  the  judgment  of  disbarment  through- 
out, is  it  not  plain  that  what  was  really  sought  was  to 
destroy  my  good  name,  and  to  compel  me  to  accept  a 
mangled  and  crippled  right  to  follow  my  profession,  an 
existence  of  living  shame,  as  a  bribe  for  repudiating 
the  cause  of  i^iy  clients?  What  was,  as  it  still  is, 
sought,  was,  and  still  is,  to  compel  me  to  submit  to  the 
*^  punishment,"  and,  as  a  condition  for  having  it  with- 
drawn, to  make  a  public  false  confession  that  the  cause 
of  my  clients  is  without  foundation.  It  is  the  use  of 
the  power  of  the  State  of  California  by  The  Southern 
Pacific  Company,  to  compel  an  attorney  to  repudiate 
and  betray  his  wronged,  oppressed  and  defenseless 
clients,  to  their  wicked  enemies. 

In  Coke's  Institutes,  Part  2,  On  the  29th  Chapter  of 
Magna  Charta,  Sir  Edward  Coke  says  (at  pp.  54-5): 

"  The  philosophical  poet  doth  notably  describe 
the  damnable  and  damned  proceedings  of  the  Judge 
of  Hell."     *     * 

He  then  quotes  the  well  known  lines  of  Virgil,  and 
translates  them  thus: 

''First  he  punisheth,  and  then  he  heareth,  and 
lastly  compelleth  to  confess,  and  make  and  mar 
laws  at  his  pleasure.''     *     * 

And  he  then  says: 

''But  good  Judges  and  Justices  abhor  these 
courses." 

But  in  the  case  here,  the  authors  of  the  disbarment 
and  of  the  decision  of  the  case  in  which   the  brief  was 


175 

filed,  have  far  outdone  all  that  was  so  emphatically  con- 
demned by  Sir  Edward  Coke. 


The  position  concerning  an  apology  thus  taken  in 
the  judgment  of  disbarment  was  also  dictated  in  ad- 
vance by  The  Southern  Pacific  Company;  and  the  kind 
of  apology  wanted  was  also  stated  in  advance  by  The 
Southern  Pacific  Company.  See  the  news  article  in 
The  Evening  Post  on  December  7,  1894,  and  the  edi- 
torials in  the  same  paper  on  December  the  13th  and 
December  the  20th  (Appendix  pp.  8,  9,  21).  Those 
were  articles  published  in  San  Francisco,  and  were 
specially  addressed  to  me.  The  articles  in  The  Record- 
Union  were  published  in  Sacramento  and  were  meant 
for  the  people  of  the  State.  Hence  it  was  only  in  the 
articles  in  The  Evening  Post  that  the  exhortation  was 
addressed  to  me  "to  withdraw  his  insolent  and  disre- 
spectful brief,"  and  "to  apologize.''  The  reader  is  asked 
to  notice  the  peculiar  language  of  those  articles  in  The 
Evening  Post  concerning  an  apology.  It  is  plainly  the 
language  of  the  owner  of  The  Supreme  Court  of  Cali- 
fornia, addressed  to  me.  A  similar  article  (mentioned 
in  subdivision  12  of  this  chapter),  published  in  a  venal 
weekly  of  San  Francisco  on  March  4,  1899,  contained  a 
similar  demand,  saying : 

"Nothing  but  an  abject  apology,  with  a  promise  to  be  at 
least  rational  in  future,  will  cause  the  tribunal  of  last  resort 
to  lift  its  sentence  of  disbarment." 


(11.)    The  Bolstering  of  the  Disbarment  by  Falsely   Exhibiting  the 
Victim  as  Admitting  That  He  Was  Being  Treated  Fairly. 

A  bolstering  of  the  disbarment  which  was  about  to 
be  inflicted  by  exhibiting  the  victim  as  admitting  that 


176 

he  was  being  treated  fairly  was  invented  and  outlined 
in  advance  by  The  Southern  Pacific  Company  and  pub- 
lished in  the  editorial  in  The  Recofd-Union  on  Decem- 
ber the  20th  (See  the  Appendix  p.  17),  where,  with  de- 
liberate lying,  I  am  represented  as  adini t ting  2iM^  saying 
that  I  was  being  treated  fairly. 

In  the  part  of  the  judgment  of  disbarment  written  by 
Wm.  H.  Beatty,  the  Chief  Justice,  this  rascally  con- 
trivance of  The  Record-Union  is  also  adopted.  Taking 
rascally  advantage  of  what  was  said  by  me  as  shown  on 
pages  170-2  above,  Wm.  H.  Beatty,  the  Chief  Justice — 
by  a  piece  of  infamous  trickery  of  which  only  the  bas- 
est of  scoundrels  and  vilest  of  cowards  could  be  capa- 
ble— strives  to  misrepresent  me  as  admitting  the  dis- 
barment to  be  just.  This  effort  of  Wm.  H.  Beatty,  the 
Chief  Justice,  may  be  seen  in  all  that  part  of  his  con- 
curring opinion  which,  extending  to  the  foot  of  page  32 
of  the  Appendix,  begins  with  the  following  words  on 
page  31: 

"Mr.  Philbrook,  himself,  by  his  tardy  disclaimer  made  in 
the  course  of  his  oral  argument,  seems  to  admit  the  justice 
of  these  views." 


( 12.)  The  Bolstering  of  the  Disbarment  by  the  Trickery  of  Exhibiting 
it  as  Approved  by  *«A  Brother  Attorney"  of  the  Victim,  "in 
Whom  He  Had  Confidence." 

This  is  done  by  Wm.  H.  Beatty,  the  Chief  Justice,  in 
his  concurring  opinion,  and  is  shown  on  page  32  of  the 
Appendix.  It  is  based  in  part  upon  a  deliberate  lie 
about  my  language:  What  I  said  was  "A  member  of 
the  bar  for  whom  I  have  the  greatest  respect  (See  the 
transcript  from  the  reporter's  notes  shown  on  page  170 


177 

above).  Wm.  H.  Beatty,  the  Chief  Justice,  by  deliber- 
ately lying,  turns  my  words  into  ''a  brother  attorney  in 
whom  he  had  confidence*^  (See  the  Appendix  p.  32).  And 
here  I  may  add  that  shortly  after  the  disbarment  was 
inflicted  the  official  reporter  informed  me  that  Wm.  H. 
Beatty,  the  Chief  Justice,  had  my  exact  words  written 
out  in  long  hand  from  the  reporter's  notes  and  fur- 
nished him  before  he  wrote  his  concurring  opinion. 
He  was  searching  for  means  by  which  to  take 
me  at  a  disadvantage,  and,  not  finding  it  in  my  words, 
chose  to  invent  it  by  lying.  The  trickery  is  also  based 
in  part  upon  covert  assumption^  a  trick  already  de- 
scribed, the  covert  assumption  that  the  language  did 
constitute  a  "menace"  and  "threat."  This  bolstering 
of  the  disbarment  with  "a  brother  attorney  in  whom  he 
had  confidence'*^  is  a  trick  conceived  and  practiced  in  the 
same  rascally,  cowardly,  malevolent  spirit,  and  for  the 
same  evil  purpose,  as  that  of  bringing  in  "A  Committee 
from  the  Bar  Association  of  San  Francisco,"  pointed 
out  on  pages  11 3-1 17  above. 


(i3.)  The  Bolstering  of  the  Disbarment  by  the  False  Pretense 
that  the  Victim  *' Was  Plainly  Informed  from  the  Bench" 
That  He  was  Accused  of  Having  "Menaced  the  Judges." 

In  the  effort  to  bolster  the  disbarment  no  effort  was 
spared,  no  matter  how  contemptible.  In  addition  to 
those  already  pointed  out,  it  is  stated  in  the  part  of  the 
judgment  of  disbarment  written  specially  by  Wm.  H. 
Beatty,  the  Chief  Justice,  that  the  victim  "  was  plainly 
informed  from  the  bench'*  that  he  was  accused  of  hav- 
ing, in  the  brief,  "menaced   the  judges."     This  false- 


178 

hood  may  be  seen  in  that  part  of  his  concurring 
opinion  shown  on  pages  31  and  32  of  the  Appendix, 
and  in  the  passage  quoted  on  page  169  above.  It  is 
expressed  with  the  trickery  in  the  use  of  language 
which  characterizes  the  entire  judgment  of  disbarment. 
In  one  part  the  language  is  *'  he  was  plainly  informed 
from  the  bench,"  and  a  little  further  on  what  was  said 
is  called  "these  plain  intimations  "  (see  the  Appendix, 

P-  32). 

All  this  pretense  in  the  judgment  of  disbarment  is 
founded  solely  upon  the  verbal  remark  which  was 
made  by  Wm.  H.  Beatty  himself,  the  Chief  Justice,  at 
the  close  of  the  mock  hearing  of  the  citation.  How 
false  it  is  may  be  seen  by  comparing  it  with  the  very 
words  he  uttered,  as  they  appear  in  the  transcript  from 
the  notes  of  the  shorthand  rep9rter  shown  on  page  171 
above. 


(14.)    Two  of  the  Particular  New  Accusations. 

To  show  the  outrage  of  any  of  the  new  accusations 
in  the  judgment  of  disbarment,  it  would  of  course  be 
enough  to  show  that  it  is  a  new  accusation,  inserted 
without  any  previous  notice  of  it  to  the  accused  and 
without  giving  him  a  hearing  upon  it.  But  the  two 
new  accusations  contained  in  the  following  passage  are 
worthy  of  still  further  attention: 

"In  a  petition  for  rehearing  he  used  disrespectful  language 
towards  a  Commissioner  of  the  Court  who  had  prepared  the 
opinion  in  the  case,  for  which,  perhaps,  he  should  have  been 
called  to  account  at  the  time;  and  more  recently  we  were 
compelled  to  strike  out  his  brief  in  another  case  for  disre- 
spectful language."* 


See  the  Appendix,  p. 


179 

This  was  forthwith   (January  lo,  1895)   exploited  in 
an  editorial  in  The  Record-Union  as  follows: 

"He  was  punished  for  intolerable  and  repeated  insolence, 
and  for  threats  and  attempted  intimidation  of  the  Courts,  of 
which  offending  he  has  been  notoriously  guilty  in  the  past, 
says  the  Court,  and  so  say  his  fellow  members  of  the  bar  in 
San  Francisco."* 

The   sole   basis    for   those  accusations  and  for  that 
ground  of  the  disbarment  is  as  follows: 

As  already  stated,  it  w^as  on  April  27,  1894,  that  the 
case  in  which  the  brief  was  filed  was  argued  in  the 
lower  Court  on  the  motion  for  a  new  trial.  At  that 
time,  in  the  presence  of  J.  B.  Reinstein  and  E.  R.  Tay- 
lor, who  appeared  as  attorneys  for  the  Newmans,  I 
pointed  out  fully  the  fraud  in  which  Ralph  C.  Har- 
rison, who  was  then  one  of  the  Justices  of  the  Supreme 
Court,  was  a  party;  and  I  also  pointed  out  that  the 
placing  of  the  papers  of  the  secret  transfer  in  his  hand- 
writing and  having  them  signed  by  him  as  the  sole 
witness,  was  a  plot  to  intimidate  me  into  abandoning  my 
clients  and  to  influence  the  courts  improperly  to  sustain 
the  transaction.  My  argument  and  the  fact  that  I  was 
appealing  the  case  to  the  Supreme  Court,  were  of  course 
reported  to  Justice  Ralph  C.  Harrison,  for  E.  R.  Tay- 
lor was  his  particular  crony,  and  J.  B.  Reinstein  and 
the  two  Newsman s  were  his  confederates.  Thereupon 
Ralph  C.  Harrison  began  to  use  the  position  he 
occupied  as  a  Justice  of  the  Supreme  Court,  to  strike 
at  me  and  to  get  me  discredited  with  the  public  so  as 
to  prepare  a  shield  to  be  interposed  between  himself 
and  the  exposure  of  his  villainy,  which,  as  he  then 
knew,  would  shortly  be  made  by  me  in  the  Supreme 
Court. 


^See  the  Appendix,  p.  36. 


i8o 


On  June  13,  1894,  one  of  my  cases  {Dowltng  vs. 
Conniff)  in  the  Supreme  Court  was  there  decided 
against  my  client.  The  decision  may  be  seen  in  Vol. 
103  of  the  Cal.  Reports  at  p.  75.  The  Commissioner 
who  prepared  the  decision  was  the  father-in-law  of 
Wm.  F.  Herrin,  the  Chief  Counsel  of  The  Southern 
Pacific  Company.  Only  ten  days  later  the  same 
Court  decided  another  case  {Ryan  vs,  Altschul)  upon 
the  same  identical  point  of  law  and  laying  down  as  the 
law  directly  the  contrary  of  what  ten  days  previously 
had  been  declared  as  the  law  in  Dowltng  vs.  Conniff. 
The  second  of  the  two  decisons  may  be  seen  in  the 
same  volume  of  reports  at  p.  174.  My  petition  for  a 
rehearing  of  Dowling  vs.  Conniff  (a  petition  which  was 
forthwith  denied)  only  pointed  out  that  the  rule  of  law 
which  had  been  expressly  denied  in  the  decision  had 
been  expressly  affirmed  ten  days  later.  That  was  the 
falsely  pretended  ^'  disrespectful  language."  That  it 
was  simply  the  true  statement  of  a  fact  any  one  may 
see  by  comparing  the  two  decisions.  The  passage  in 
the  judgment  of  disbarment,  just  quoted,  is  the  first  and 
only  statement  or  even  intimation  that  was  ever  made 
to  me  that  my  petition  for  rehearing  contained  "  disre- 
spectful language." 

On  June  15,  1894,  in  a  case  ( Warner  vs.  Dye  Works) 
pending  in  the  department  of  the  Supreme  Court  pre- 
sided over  by  the  Justice  Ralph  C.  Harrison,— a  case 
in  which  the  same  Reinstein  &  Eisner  were  the  opposing 
attorneys,  and  in  which  a  piece  of  their  grossly  dis- 
honest practices  was  fully  proved  and  was  one  of  the 
points  in  the  case— an  order,  so  drawn  as  not  to  reveal 
what  particular  Justice  was  its  author,  was  made  strik- 


i8i 


ing  out  my  briefs.     That  order  was  in  the  following 

words : 

* '  By  the  Court :  The  briefs  filed  herein  on  the  part  of  the 
appellant  contain  reflections  upon  the  integrity  and  con- 
duct of  the  Superior  Court  in  which  the  case  was  tried  as  well  as 
of  the  counsel  of  the  respondents,  and  indicate  such  a  man- 
ifest disregard  of  the  respect  due  from  an  attorney  to  the 
judicial  tribunals  of  the  State  that  it  is  not  proper  that  they 
should  be  permitted  to  remain  unnoticed  or  without  rebuke. 
It  is  therefore  ordered  that  the  said  briefs  be  struck  from  the 
files  of  the  Court." 

Upon  that  order  as  a  basis,  every  morning  news- 
paper of  San  Francisco  was  made  to  publish  on  the 
next  day  an  article  calling  me  by  name,  represent- 
ing me  as  ^'  brought  up  with  a  short  turn  b}^  the 
Supreme  Court/'  and  abusing  me  most  venomously. 
One  of  those  articles  occupied  nearly  a  column  of  one 
of  the  great  daily  newspapers  of  San  Francisco,  and 
was  preceded  by  six  separate  sets  of  sensational  and 
abusive  head  lines.  That  order  and  those  newspaper 
articles  were  all  the  work  of  Justice  Ralph  C.  Harrison 
and  his  confederates,  an  effort  to  get  me  discredited 
with  the  public  and  thus  to  ward  off  the  effect  of  the 
exposure  of  his  fraud  and  treachery  and  wickedness 
which  I  was  soon  to  make  in  the  Supreme  Court. 

Such  and  such  only  was  the  basis  for  the  pretended 
ground  of  the  disbarment  stated  in  the  passage  last 
quoted,  as  formulated  in  the  judgment  of  disbarment 
and  editorially  exploited  by  The  Southern  Pacific 
Company    in    The    Record- Uftzon, 


<15.)    The  Falsity  of    One  of  the  Assigned  Grounds   Subsequently 

Confessed. 

One  of  the  new  accusations  in  the  judgment  of  dis- 
barment is  that  "It  [the  brief]  also  contains  language 


l82 

highly  reprehensible  concerning  the  learned  Judge  of 
the  Superior  Court  who  heard  and  determined  the  said 
action  at  nisi  priusP  The  falsity  of  this  pretended 
ground  of  the  disbarment  has  been  subsequently  con- 
fessed. For  all  that  part  of  the  brief,  without  even  the 
least  diminution  or  modification  in  the  language,  was 
refiled  by  Mr.  Rankin,  the  special  administrator,  and 
was  received  and  acted  on  by  the  Justices  and  has  been 
kept  on  the  files  without  so  much  as  the  least  censure 
or  even  criticism. 


(i6.)    The    Assignment    of  the  Defense  Made  by  the  Attorney,  as 
One  of  the  Grounds  of  the  Disbarment. 

The  following  g^rounds  of  the  disbarment  judgment 
— all  of  them  new  accusations — add  punishment  for  de- 
fending against  its  imposition,  namel}^: 

"It  [the  brief]  also  contains  language  highly  reprehensi- 
l^jg  :^  :}c  H<  and  his  answer  contains  such  language  con- 
cerning another  learned  Judge  of  the  Superior  Court  who 
decided  the  other  cases  mentioned  in  said  Philbrook's  an- 
swer.'"'^ 

"As  respondent  has,  in  the  same  connection,  assailed  not 
not  only  all  the  members  of  this  Court  and  the  two  Superior 
Judges  above  referred  to,  but  also  certain  reputable  lawyers 
who  were  at  one  time  associated  with  him  in  the  litigation 
and  a  special  administrator  who  was  appointed  at  his  own 
instance  and  out  of  his  own  office,"  etc.,  etc.f 

It  is  a  denial  of  due  process  of  law,  of  an  inalienable 
human  right,  to  make  a  party's  course  in  defending 
himself  against  a  prosecution,  a  ground  for  adding  to 
the  severity  of  the  judgment.     It  is  also  settled  that  an 

*  See  the  Appendix,  p.  23. 
t  See  the  Appendix,  p.  26. 


i83 

attorney  can  not  be  disbarred  for  anything  he  may  do 
as  a  party  to  a  suit  or  proceeding  in  the  Court  * 

In  Greene  vs.  Briggs^  i  Curtis  C.  C,  an  act  of  the  Leg- 
islature had  provided  that  if  any  one  convicted  of  selling 
intoxicating  liquor  should  appeal  from  the  conviction, 
and  should  be  convicted  again  upon  the  trial  to  be  had 
upon  such  appeal,  he  should  be  more  severely  sen- 
tenced. The  Court  held  that  it  was  not  within  the 
power  of  the  Legislature  to  make  any  such  conduct  a 
ground  for  adding  to  the  severity  of  the  sentence. 

In  the  case  In  re  Garland^  4  Wall.,  384,  it  is  laid 
down  by  the  Supreme  Court  of  the  United  States  (and 
it  is  of  course  self-evidently  true)  that  the  right  to  de- 
fend one's  self  against  a  prosecution,  is  an  inalienable 
human  right. 

In  the  case/^  re  Wallace^  L.  R.  i  P.  C,  a  court  had 
disbarred  an  attorney  for  alleged  contemptuous  conduct 
on  his  part  as  a  party  to  a  suit.  On  appeal,  the  dis- 
barment was  set  aside,  on  the  ground  that  his  conduct 
as  a  party  to  a  suit,  could  not  possibly  furnish  ground 
for  disbarment. 


(1 7)  The  Effort  to  Bolster  the  Disbarment  by  Appealing  to  the 
Prejudice  Against  Lawyers.  The  Trickery  of  Pretending  to 
be  on  the  Side  of  the  People. 

It  is  well  known  that  among  the  ignorant,  among 
those  who  have  never  felt  the  need  of  a  lawyer  by 
direct  personal  experience,  there  is  a  prejudice  against 
lawyers  based  upon  the  notion  that  they  are  given  to 
insulting   witnesses    and   parties   and  to  taking  unfair 

■■■Greene  vs.  Briggs,  i  Curtis  C.  C,  327.  In  re  Garland,  4  Wall,  384.  In  re  Wallace,  L.  R. 
1  P.  C,  283. 


i84 

advantages,  and  upon  the  misconduct  of  dishonest 
members  of  the  profession.  The  editorials  in  The  Rec- 
ord Union  appealed  to  tl;iis  prejudice  cunningly  and 
profusely  in  support  of  the  disbarment,  and  were  in 
this  respect  followed  by  the  same  trickery  in  the  judg- 
ment of  disbarment. 

An  example  of  this  may  be  seen  in  the  following 
passage  in  the  concurring  opinion  of  Wm.  H.  Beatty, 
the  Chief  Justice: 

•'The  law  which  in  such  cases  makes  us  the  judges  of  of- 
fenses against  the  Court  places  us  in  an  extremely  delicate 
and  invidious  position,  but  it  leaves  us  no  alternative  ex- 
cept to  allow  the  Court  and  the  people  of  the  State,  in 
whose  name  and  by  whose  authority  it  acts,  to  be  insulted 
with  impunity,  or  to  exercise  the  authority  conferred  by 
law  for  the  purpose  of  compelling  attorneys  to  'maintain  the 
respect  due  to  courts  of  justice  and  judicial  officers.'  "  * 

In  the  part  of  the  disbarment  judgment  signed  by 
five  Justices,  the  same  trickery  is  employed,  but  is  more 
cunningly  masked.  The  following  passage  is  an  ex- 
ample: 

*  ^  "It  is  intolerable.  It  can  not  be  suffered  by  any  occupant 
of  the  bench  who  has  a  just  sense  of  his  duty  to  the  people 
to  preserve  the  due  dignity  of  their  courts  and  the  free 
course  of  justice,  "f 

These  passages  are,  however,  but  examples  of  a  like 
trickery  which  may  be  seen,  though  cunningly  masked, 
throughout  the  judgment  of  disbarment. 

This  also  is  a  peculiar  trickery  which,  both  the  idea, 
and  the  phraseology,  was  copied  into  the  judgment  of 
disbarment  from  the  articles  previously  published  by 
The  Southern  Pacific  Company  in  The  Evening  Post 
and    The  Record-Union.     See  the  editorial  published  in 

*  See  the  Appendix,  pp.  30-31. 
t  See  the  Appendix,  p.  27. 


i85 

The  Everting  Post  on  Dec.  the  12th  (Appendix  p.  9). 
the  editorial  in  The  Record-Union  on  December 
the  13th  (Appendix  pp.  10,  13,  14,  15);  and  the  ed- 
itorial in  The  Record-Union  on  December  the  20th 
(Appendix  pp.  18,  21).  The  same  idea  and  the  same 
phraseology  also  appear  in  the  editorials  published  in 
The  Record-Union  on  January  the  loth  (Appendix 
p.  36),  on  January  the  14th  (Appendix  pp.  39,  40),  on 
February  the  i8th  (Appendix  p.  42),  on  March  the 
2nd  (Appendix  p.  43),  on  March  the  14th  (Appen- 
dix  p.  46),  and  on  March  the  23rd   (Appendix  p..  49). 


(18.}    The  Language  of  the  Brief  Garbled  and  Falsely  Quoted. 

This  is  extensively  practiced  in  the  part  of  the  dis- 
barment judgment  signed  by  five  Justices,  and  the  dis- 
honesty and  malevolence  with  which  it  is  done  is 
apparent.  And  a  like  garbling  of  the  language  of  the 
brief  was  also  published  in  advance  as  a  part  of  the 
editorial  in  The  Record- Union  on  December   13,  1894.* 

The  language  of  the  brief  is  not  given  consecutively, 
but  in  broken  and  separated  fragments,  and  any  state- 
ment of  the  point  which  was  being  discussed  in  that 
part  of  the  brief  is  carefully  avoided.  The  treatment 
given  the  brief  falls  strictly  within  the  definition  of 
garbling,  i.  ^.,  changing  a  document  or  writing,  with  evil 
intent,  by  suppression  or  elision.  And,  in  connection 
with  it,  there  is.  by  the  device  of  falsely  quoting  in  ital- 
ics words  not  actually  in  italicij  in  the  brief,  a  straining  of 
the  language  away  from  its  true  meaning,  a  malevolent 
effort  to  put  into  the  language  insinuations  not  actually 

*See  the  Appendix,  pp.  11-13. 


i86 

there.  In  this  manner  the  judgment  of  disbarment 
falsely  quotes  in  italics  the  following  expressions,  not 
so  much  as  a  word  of  which  was  actually  in  italics  in 
the  brief:  "  unless  you  adopt  it  as  your  own  'V  ^'  unless 
you  accept  it  "/  "  all  to  whom  knowledge  ";  ^'  suspect  "; 
*'  the  decision  here  "/  "  they  will  kvow  ity 


(1 9.)    The  Great  and  Faithful  Labor  Manifest  in  the  Brief, 

In  considering  the  causelessness  of  the  disbarment, 
the  character  of  the  brief,  described  on  pages  75-86 
above,  was  of  course  in  itself  an  important  fact.  In 
the  judgment  of  disbarment,  all  consideration  of  so 
important  a  fact  is  wickedly  suppressed. 

The  principle  here  referred  to  has  been  noticed  by 
Prof.  Ritchie  in  his  treatise  on  Natural  Rights^  in 
speaking  of  the  test  to  be  applied  in  determining 
whether  a  book  is  meritorious.  In  this  connection, 
Prof.  Ritchie  says  (at  p.  193)  : 

"  The  test  of  earnest,  hard  work  may  be  su  - 
gested  as  a  help  towards  distinguishing  the  se- 
rious artist  from  the  manufacturer  of  mere  inde-  /  i 
cencies  ;  it  is  one  form  of  the  general  ethical  te^t  ^ 
of  coherence.  The  virtue  of  industry,  of  honest 
work,  may  go  along  with  many  defects,  but  can 
not  go  along  with  mere  recklessness  and  absence 
of  all  sense  of  responsibility." 


(20)    The  •«  Necessity''  of  the  Disbarment. 

In  the  judgment  of  disbarment,  it  is  said  : 

••  We  exceedingly  regret  the  necessity  of  this  proceeding. 
*     "'^     *     But  to   have  overlooked  it  would   have   been  to 


i87 

violate  our  duty,  invite  future  disrespect,  and  establish  a  pre- 
cedent which  would  have  embarrassed  the  Court  if  offenses 
of  a  similar  character  should  be  called  to  its  attention  in  the 
future.  *  *  And  even  now  we  regret  that  we  can  not 
see  some  escape  from  the  necessity  of  imposing  the  pen- 
alty which  seems  to  be  imperatively  demanded."* 

In  the  particular  part  of  the  disbarment  judgment 
drawn  up  specially  by  William  H.  Beatty,  the  Chief 
Justice,  it  is  said  : 

■  *     *     "  That  he  has  never  done  so,  nor  offered  to  do  so, 

leaves  his  offense  entirely  unmitigated  in  my  eyes,  and  im- 
poses upon  the  Court  the  necessity  of  inflicting  the  due 
penalty.  As  to  the  character  of  the  penalty,  I  concur  in 
the  view  of  the  Court  that  it  should  be  suspension  of  his 
privileges  as  an  attorney. "f 

This  pretended  and  false  ground  for  the  disbarment 
was  also  published  in  advance  by  The  Southern  Pacific 
Company  in  their  newspapers.  See  the  articles  in  the 
Appendix. 

In  Bagg'^s  Case^  ii  Coke  93  (decided  in  1616),  where 
the  removal  of  the  burgess  was  held  void  and  a  manda- 
mus issued  to  restore  him,  a  like  plea  was  profusely  set 
up  professing  to  justify  the  removal  on  the  ground  of 
''necessity." 

In  the  Case  of  Wallace!^,  R.  i  P.  C.  283  (1886). 
where  the  disbarment  of  an  attorney  for  contempt  was 
held  to  have  been  inflicted  without  cause  and  overruled,, 
the  Court  which  had  inflicted  the  disbarment  made 
profusely  the  same  plea  of  "necessity." 

In  Ex  Parte  Steinman  95  Pa.  St.  220,  where  the 
disbarment  of  two  attorneys  for  libelling  the  Court  was 
held  void  and  overruled,  the  Court  which  made  the  dis- 
barment  made  profusely  the  same  plea  of  "necessity." 

"See  the  Appendix,  p.  28. 
tSee  the  Appendix,  p.  32. 


i88 

So  universally  has  "necessity"  been  set  up  in  all 
periods  of  human  history  as  the  plea  of  oppression  and 
tyranny,  that  it  long  ago  passed  into  a  proverb. 

In   his   speech   on  the  India  Bill,  William  Pitt  said: 

"Necessity  is  the  argument  of  tyrants;  it  is  the 
creed  of  slaves." 

Charles  Sumner,  in  a  great  speech,  said: 

*  *"To  say  that  it  was  a  necessity  is  only  to  repeat 
the  perpetual  plea  by  which  slave  masters  and  slave- 
traders  from  the  earliest  moment  have  sought  to 
vindicate  their  crimes." 

And  in  Paradise  Lost  it  is  said: 

"  So  spake  the  Fiend,  and  with  necessity, 

The  tyrant's  plea,  excused  his  devilish  deeds." 

Possibly  the  authors  of  the  disbarment  would  con- 
sider these  passages  from  Milton,  from  Pitt,  and  from 
Sumner  as  "outrageous  verbal  assaults." 


The  Legal  Effect  of  the  Causelessness  of    the    Disbarment. 

The  utter  causelessness  of  the  disbarment  is  in  law, 
as  in  natural  justice,  a  wrong  even  more  fundamental 
than  the  denial  of  a  hearing. 

In  Violett  vs.  Alexandria  (92  Va.  514)  the  Court 
said: 

"The  object  of  the  Constitution,  in  requiring 
notice  and  the  opportunity  to  be  heard,  is  that  a 
man  may  be  able  to  protect  himself." 

In  Hovey  vs.  Elliott  (i6j  U.  S.  415)  the  Supreme 
Court  of  the  United  States  said: 


i8g 

*  *  tj:  u  -g^^  notice  is  only  for  the  purpose  of 
affording  the  party  an  opportunity  of  being  heard 
upon  the  claim  or  the  charges  made ;  it  is  a  sum- 
mons to  him  to  appear  and  speak,  if  he  has  any- 
thing to  say,  wh}^  the  judgment  should  not  be  ren- 
dered, A  denial  to  the  party  of  the  benefit  of 
a  notice  would  be  in  effect  to  deny  that  he  is  enti- 
tled to  notice  at  all,  and  the  sham  and  deceptive 
proceeding  had  better  be  omitted  altogether.  It 
would  be  like  saying  to  a  party,  appear  and  you 
shall  be  heard,  and  when  he  has  appeared,  saying, 
your  appearance  shall  not  be  recognized,  and  you 
shall  not  be  heard.  *  *  *  It  is  difficult  to  speak 
of  a  decree  thus  rendered,  with  moderation  ;  it  was 
in  fact  a  mere  arbitrary  edict,  clothed  in  the  form 
of  a  judicial  sentence." 

In    Chicago^  etc,^  R,  R.  Co.  vs.    Chicago   (i66  U.    S. 
234)  the  Court  said: 

"  Its  [a  State's]  judicial  authorities  may  keep 
within  the  letter  of  the  statute  prescribing  forms 
of  procedure  in  the  courts  and  give  the  parties 
interested  the  fullest  opportunity  to  be  heard, 
and  yet  it  might  be  that  its  final  action  would 
be  inconsistent  with  that  [the  14th]  amendment. 
In  determining  what  is  due  process  of  law  regard 
must  be  had  to  substance,  not  to  form." 


And  in  Allgeyer  vs.  Louisiana  165  U.  S.  589,  the  Su- 
preme Court  of  the  United  States  has  shown,  in  a  truly 
admirable  decision,  that  the  14th  amendment  of  the 
Constitution  of  the  United  States  is,  among  other 
things,  a  guaranty  of  the  whole  American  people  that 
no  State  shall  punish  any  one  for  an  act  which  is  in 
its  nature  right  and  proper,  or  make  any  such  act 
punishable.  That  the  guaranty  includes  the  individual 
lawyer's  right  to  the  proper  use  of  his  profession  may 


IQO 


he  seen  from  such  decisions  as  Bx  parte  Bradley,  7 
Wall.  364;  Ex  parte  Garland  4  Wall.  333;  and  Dent. 
vs.  West  Virginia  129  U.  S.  121. 


10.  The  Disbarment  Unlawful  Because  Imposed  Upon  the 
Ground  of  "Punishment"  and  "Penalty"  for  an 
"Offense." 

The  judgment  of  disbarment — following  in  this  re- 
spect, as  well  as  in  others,  the  editorials  published  in 
The  Evening  Post  and  The  Record-  Union — expressly 
states,  in  its  own  words,  that  it  is  imposed  upon  the 
ground  of  '*  punishment "  and  "  penalty  "  for  an 
"  offense."  Take,  for  example,  the  following  passages 
(see  the  Appendix  pp.  27,  28): 

*  *  "An  attempt  to  influence  a  Judge  through  fear  of 
physical  injury  is  no  graver  offense  than  such  an  attempt 
against  his  reputation." 

*  *  "And  when  the  punishment  of  such  an  offense  is 
clearly  within  the  jurisdiction  of  the  Court,  as  in  the  case  of 
one  of  its  own  officers,  it  must  impose  the  penalty  or 
neglect  its  imperative  duty." 

*  *  "It  may  not  be  out  of  place  to  say  that  we  have  been 
lenient  to  respondent  for  past  offenses  of  a  character  similar 
to  the  one  now  before  us,  though  not  so  flagrant.*' 

*  *  "  And  even  now  we  regret  that  we  cannot  see  some 
escape  from  the  necessity  of  imposing  the  penalty  which 
seems  to  be  imperatively  demanded." 

And  in  the  part  written  specially  by  Wm.  H.  Beatty, 
the  Chief  Justice,  it  is  said  (see  the  Appendix   pp.  30, 

31): 

*  *  "In  this  consists  the  offense,  of  which  the  court  was 
compelled  to  take  cognizance  of  its  own  motion,"  etc. 


191 

*  *  "  That  he  has  never  done  so,  nor  offered  to  do  so, 
.leaves  his  offense  entirely  unmitigated  in  my  eyes,  and  im- 
poses upon  the  Court  the  necessity  of  inflicting  the  due  pen- 
alty. As  to  the  character  of  the  penalty,  I  concur  in  the 
view  of  the  Court  that  it  should  be  suspension  of  his  privi- 
leges as  an  attorney." 

*  *  "  The  law  which  in  such  cases  makes  us  the  judges 
of  offenses  against  the  Court."   *  * 

*  *  "all  men  would  concede  the  propriety  of  depriving 
him  of  his  privileges  as  an  attorney,  and  if  this  is  so  it  can 
not  be  denied  that  some  penalty  is  incurred."   *  * 

These  passages  are,  however,  but  examples  of  the 
spirit  and  tone  of  the  entire  judgment  of  disbarment. 
The  language  throughout  is  vindictive  in  the  extreme 
and  full  of  hostility  and  malevolence  and  hate.  It  is 
manifest  in  substance,  as  well  as  being  expressly 
avowed,  that  the  disbarment  was  inflicted  solely  as  a 
"  punishment,"  a  "  penalty  "  for  an  "  offense,"  and  for 
the  actual  and  openly  avowed  purpose  of  wreaking 
vindictive  vengeance  upon  the  victim  and  to  cause  him 
injury  and  suffering.  It  is  manifest  and  undeniable 
that  the  case  was  not  even  considered  in  any  other 
aspect.  In  the  part  written  specially  by  Wm.  H. 
Beatty,  the  Chief  Justice,  that  is  declared  to  be  "  the 
view  of  the  Court ^^  and  in  that  view,  he  says  expressly, 
^'^ I  concur ^^  (see  the  Appendix  p.  32). 

And  now  consider  the  terms,  "  punishment,"  ^'  pen- 
alty,'' ''  offense,"  which  are  so  freel}''  used  in  the  judg- 
ment of  disbarment. 

In  the  constitution  and  statutes  of  California,  the 
term  "  offense  "  is  expressly  declared  to  mean  "  crime," 
and  "  punishment"  is  expressly  declared  to  be  the  pur- 
pose sought  by  a  criminal  action.* 

♦Constitution  of  1849,  Art.  i,  Sec.  8.  Constitution  ot  1879,  Art.  i,  Sees.  8,13.  Penal 
Code,  Sees.  13,  15,  16;  Part  I:  Title  III  (Heading),  Title  VII  (Heading),  Title  XV,  Chapter 
II  (Heading). 


192 

In    State   vs.    West  42  Minn.,  the  Court  said  (at  p. 

'^  The  terms  '  crime',  'offense'  and  'criminal 
offense'  are  all  synonymous,  are  ordinarily  used 
interchangeably,  and  iaclude  any  breach  oT  law 
established  for  the  protection  of  the  public,  as 
distinguished  from  an  infringement  of  mere  pri- 
vate rights,  for  which  a  penalty  is  imposed  or 
punishment  inflicted  in  any  judicial  proceeding. 
*  *  *  the  term  includes  any  punishable  viola- 
tion of  law,  the  doing  of  that  which  a  penal  law 
forbids,  or  omitting  to  do  what  it  commands." 

In  U.  S*  vs.  Reisinger  (128  U.  S.,  402)  the  Supreme 
Court  of  the  United  States  said  : 

''The  only  ground  upon  which  the  correctness  of 
this  interpretation  may  be  doubted  is,  that  the 
words  '  penalty',  'liability',  and  'forfeiture'  do  not 
apply  to  crimes,  and  the  punishments  therefor. 
We  cannot  assent  to  this.  These  words  have  been 
used  by  the  great  masters  of  crown  law  and  the 
elementary  writers  as  synonymous  with  the  word 
'punishment'  in  connection  with  crimes  of  the 
highest  grade."     *     *     * 

In    Webster's  International    Dictionary,    the    word 
"  punishment  "  is  defined  as  follows  : 

^  ''{Law)  A  penalty  inflicted  by  a  court  of  jus- 
tice on  a  convicted  offender  as  a  just  retribution 
and  incidentally  for  the  purposes  of  reformation 
and  prevention." 

In   the   Am.    &   Eng.   Encyclo.  of  Law,   the  word 
"  penalty  "  is  defined  as  follows  : 

"The  term  penalty  involves  the  idea  of  punish- 
ment. A  penalty  is  in  the  nature  of  a  punish- 
ment for  the  non-performance  of  an  act,  or  for  the 


195 

performance  of  an  unlawful  act.  It  may  be 
defined  as  the  punishment  which  the  law  inflicts 
for  its  violation." 

But  it  has  been  for  more  than  a  hundred  years  thor- 
oughly settled  as  the  law  (and  it  is  the  manifest  dictate 
of  reason  also)  that  an  attorney  can  not  be  disbarred  on 
the  ground  of  "  punishment "  or  for  any  such  purpose. 

In  Cohen  vs.  Wright  (22  Cal.  320)  the  Supreme 
Court  of  California  said  : 

"  And  this  is  done  not  as  a  punishment  of  the 
attorney,  but  as  a  measure  necessary  for  the  pro- 
tection of  the  public." 

In  Ex  parte  Brounsall  (Cowper  829,  decided  in  1778) 
Lord  Mansfield  said  : 

"  But  the  question  is,  whether,  after  the  conduct 
of  this  man,  it  is  proper  that  he  should  continue 
a  member  of  a  profession  which  should  stand  free 
from  all  suspicion.  *  *  It  is  not  by  way  of  pun- 
ishment, but  the  Court  in  such  cases  exercise  their 
discretion,  whether  a  man  they  have  formerly  ad- 
mitted is  a  proper  person  to  be  continued  on  the 
roll  or  not." 

In  Ex  parte  Wall,  107  U.  S.,  the  United  States 
Supreme  Court  quoted  with  approval  this  language  of 
Lord  Mansfield  and  said  (at  p.  288): 

''  The  proceeding  is  not  for  the  purpose  of  pun- 
ishment, but  for  the  purpose  of  preserving  the 
courts  of  justice  from  the  official  ministration  of 
persons  unfit  to  practice  in  them." 

In  the  Case  of  Austin  5  Rawle  203  (decided  in  1835), 
where  the  disbarment  of  eight  attorneys  by  a  lower 
court  was  set  aside,  the  Supreme  Court,  by  Chief 
Justice  Gibson,  said  : 


194 

"  But  the  end  to  be  attained  by  removal  is  not 
punishment,  but  protection.  As  punishment  it 
would  be  unreasonably  severe  ;  *  *  for  expulsion 
from  the  bar  blasts  all  prospects  of  prosperity  to 
come,  and  mars  the  fruit  expected  from  the  train- 
ing of  a  lifetime.  For  this  reason,  the  statute  to 
regulate  attachment  and  summary  punishment  for 
contempt,  seems  to  be  inapplicable  to  this  class  of 
cases.  *  *  It  is  one  thing  to  remove  from  office  for 
unfitness,  and  another  to  punish  for  contempt.^' 

In  Scoit  vs.  The  State  86  Tex.  321  (decided  in  1894) 
all  the  decisions  are  reviewed  and  harmonized.  It  is 
there  shown  that  whenever  the  disbarment  of  an  attor- 
ney has  been  spoken  of  as  "  punishment,"  it  has  been 
so  described  solely  to  call  attention  to  the  effect  upon  the 
attorney^  and  as  a  reason  why  an  attorney  should  never 
be  disbarred  except  for  ample  cause  clearly  established. 


Now,  how  did  it  happen  that  in  the  case  here,  the  law 
and  justice  is  so  utterly  reversed,  that  the  disbarment 
has  been  inflicted,  not  only  without  so  much  as  a 
shadow  of  just  cause,  but  avowedly,  as  well  as  actually, 
as  "  punishment,"  ''  penalty  "  for  an  '^  offense  " — i.  e.^ 
as  2i punishment  for  a  crime.  The  answer  is  here.  This 
was  all  demanded  by  The  Southern  Pacific  Company, 
and  their  demand  was  complied  with  strictly. 

That  the  disbarment  was  to  be  inflicted  as  a  ^^  pun- 
ishment "  for  an  "  offense  "  was  published  by  The 
Southern  Pacific  Company  on  Dec.  13,  1894,  four  days 
before  the  mock  hearing  of  the  citation,  in  an  editorial 
in  The  Record-Union  (see  the  Appendix  pp.  10,  14, 
15).  And  this  fact  was  also  published  by  them  on 
Dec.  the  20th — sixteen  days  before  the  disbarment 
judgment   was    filed,    in    an   editorial  in  The   Record- 


195 

« 

Unio7i^  and  also  in  another  editorial  in  The  Evening 
Post  (Id.  pp.  19,  20,  21).  And,  after  the  disbarment 
was  inflicted,  the  fact  that  it  had  been  inflicted  upon 
that  very  false  and  vindictive  ground  was  exulted  in  by 
The  Southern  Pacific  Company,  in  articles  published 
by  them  in  The  Record-Union,  See  the  article  pub- 
lished in  The  Record-Union  on  Jan.  8,  1895  (Appendix 
p.  34),  that  published  on  Jan.  the  loth  (Id.  p.  36),  that 
published  on  Jan.  the  14th  (Id.  p.  40),  that  published 
on  March  the  2nd  (Id.  p.  43),  and  that  published  on 
March  the  14th  (Id.  p.  46). 

And,  in  demanding  the  disbarment  as  a  ^^  punish- 
ment for  an  "  offense,"  and  in  announcing  in  advance 
that  it  was  to  be  inflicted  upon  that  false  and  vindictive 
ground.  The  Southern  Pacific  Company  meant  every- 
thing embraced  within  the  meaning  of  those  terms  as 
they  are  defined  in  the  authorities  above  quoted  ; — 
they  meant,  and  so  declared,  that  the  disbarment  was 
to  be  inflicted  for  the  purpose  of  wreaking  a  vindictive 
vengeance  upon  the  victim,  and  to  cause  him  humilia- 
tion and  disgrace  and  injury  and  suffering.  This  may 
be  seen  from  the  expressions  used,  of  which  the  fol- 
lowing language  in  the  editorial  of  The  Record-Union 
of  Dec.  the    13th  is  an  example  (see  the  Appendix  p. 

10): 

'*  Disbarment  will  be  mild  punishment  for  such  an  offense. 
Under  the  circumstances  it  is  difficult  to  see  how  the  Court 
can  do  otherwise  than  strip  the  robes  of  '  Counselor '  from 
the  unworthy  shoulders  of  its  officer.  It  ought,  beside,  to 
jug  him  in  the  common  jail,  and  let  him  learn  wisdom  while 
he  cools  his  heels  in  prison." 

And  it  is  that  identical  meaning  that  is  adopted  and 
embodied,  with  fullness  and  precision,  in  the  judgment 
of  disbarment. 


196 


12.     The  Disbarment  Unlawful  In  Being  Imposed  as  Punish- 
ment for  Contempt  of  Court. 

Throughout  the  judgment  of  disbarment,  both  in  the 
part  signed  by  five  Justices  and  in  that  written  spec- 
ially by  Wm.  H.  Beatty,  the  Chief  Justice — and  follow- 
ing in  this  respect,  as  well  as  in  others,  the  editorials 
published  in  The  Record-Union — there  are  many  ex- 
pressions that  tend  to  indicate  that  the  disbarment  was 
inflictedas  punishment  specifically  for  contempt  of  courts 
as  well  as  "  punishment  "  for  an  ''  offense  "  in  general. 
The  expressions  here  referred  to  may  be  seen  on  pages 
23,  26,  27,  28  and  30-31  of  the  Appendix.  Those  ex- 
pressions are  not  stated  distinctly  or  separately,  but 
jumbled  up  with  others — a  feature  characteristic  of  the 
entire  judgment  of  disbarment,  and  in  which  it  also 
corresponds  strictly  with  the  editorials  in  The  Record- 
Union,  To^use  the  words  of  Prof.  Minto,  quoted  on 
page  149  above,  "  a  mixed  host  of  considerations  are 
tumbled  out  before  us."  There  is  in  the  editorials  of 
The  Record-Union  and  in  the  judgment  of  disbarment 
precisely  the  same  vagueness  as  to  what  is  the 
"  offense  "  charged.  Both  in  the  editorials  and  in  the 
judgment  there  are  indications  that  the  offense  charged 
is  a  libel  upon  "Hon.  Ralph  C.  Harrison,"  also  ''  an 
assault  upon  the  liberties  of  the  people  "  (see  the  Ap- 
pendix p.  10),  '^  the  grossest  of  assaults  upon  liberty  " 
(Id.  p.  46),  a  sort  of  lese-majesty,  and  contempt  of 
court. 

We  may  therefore  examine  it  specifically  as  a  punish- 
ment for  contempt  of  court.  It  would  of  course  be 
enough  that,  as  just  shown,  a  lawyer  cannot  be  lawfully 
or  justly    disbarred  for  any  such  purpose  as  punish- 


I 


197 

ment.  We  now  consider,  however,  specifically  the  pun- 
ishment for  contempt  of  court. 

Ever  since  California  became  a  State,  it  has  been  its 
settled  law  that  disbarment  can  not  be  inflicted  upon 
an  attorney  as  a  punishment  for  contempt  of  court. 

And  such  also  has  always  been  the  settled  law  in  the 
Courts  of  the  United  States."^ 

And  such  was  also  the  common  law  of  England. 

And  such  also  is  the  law  everywhere.f 

In  Bagg^s  Case  ii  Coke  93  (decided  in  1616  by  Sir 
Edward  Coke)  w^here  a  mandamus  was  issued  to 
restore  a  burgess  of  Plymouth,  wrongfully  removed, 
the  Court,  in  stating  the  grounds  of  the  decision,  said  : 

*  *  ''but  words  of  contempt,  or  contra  bonos 
mores,  although  they  be  against  the  .  Chief 
Officer,  or  his  Brethren,  are  good  cause  to  punish 
him,  as  to  commit  him  until  he  has  found  good 
sureties  of  his  good  behavior,  but  not  to  disfran- 
chise him." 

In  Rex  vs.  Chancellor  i  Strange  565  (decided  in 
1718),  where  a  mandamus  was  issued  to  restore  Dr. 
Bent  ley  to  his  degrees  in  the  University  of  Cambridge, 
the  Court,  in  giving  judgment  said  : 

"  But  surely  for  a  contempt  they  can  not 
deprive.  We  punish  our  officers,  but  we  do  not 
turn  them  out." 

And  in  Ex  parte  Bromisall^  Cowper,  829,  it  was 
ruled  by  Lord  Mansfield  in  1778,  that  an  attorne}^  is 
not  to  be  disbarred  upon  any  such  ground  as  ''  punish- 
ment." 

In    California   the   point   was   expressly  decided  in 

*  Ex  parte  Robinson  \()^Q\\,yi^\   Ex  par  ie  IVall  loy  V.  S..  28S. 
■fCase  of  Austin,  5  Rawle  205.  quoted  on  p.  194  above. 


198 

1850  in  the  case  of  Stephen  J.  Field's  disbarment 
{People  ex  rel.  Field  vs.  Turner  i  Cal.  149).  The  dis- 
barment of  Field  by  the  District  Court  at  Marysville, 
for  a  gross  contempt  of  the  Court,  was  held  by  the 
Supreme  Court  unlawful,  and  a  mandamus  issued  to 
restore  him.     The  Supreme  Court  said  (i  Cal.  149): 

'*  First:  Was  the  order  properly  made,  and  a 
valid  determination  of  the  Court,  which  ought 
not  to  be  disturbed  ?  It  does  not  appear  that  it 
was  made  as  a  punishment  for  contempt,  and  if  it 
w^ere  intended  as  such  it  could  not  be  supported. 
The  13th  section  of  the  act  organizing  the  district 
courts  prescribes  fine  and  imprisonment  as  a  pun- 
ishment for  contempt,  and  this  express  provision 
must  be  taken  as  exclusive  of  all  other  modes  of 
punishment.  Viewed  as  an  adjudication  for  a  con- 
tempt, the  order  is  invalid,  for  inflicting  a  punish- 
ishment  different  from  that  warranted  by  the  stat- 
ute, the  same  as  it  would  have  been,  had  it  im- 
posed a  heavier  fine  or  sentenced  to  a  longer 
imprisonment  than  the  statute  authorizes." 

The  law  as  thus  laid  down  by  the  Supreme  Court  of 
California  in  1850  has  subsequently  been  expressly 
established  by  a  statute,  which  expressly  provides  that 
the  extreme  penalty  for  contempt  of  Court  shall  be  a 
fine  not  to  exceed  $500  or  imprisonment  not  to  exceed 
five  days,  or  both  such  fine  and  imprisonment,  and 
that  no  other  penalty  shall  be  inflicted.  And  this  pro- 
vision of  the  statute  has  been  by  an  express  provision 
of  the  constitution  afiirmed  and  declared  to  be  binding 
on  all  the  courts. '''' 

But  the  fact  that  the  disbarment  was  to  be  in- 
flicted   as    "  punishment "    for    (among    other  things) 

*  C.  C.  p.  g  g  18,  1209.  1218;  Constitution  Art.  XXII.  Sees,  i,  ii. 


199 

contempt  of  court  was  published  in  advance  by  The 
Southern  Pacific  Company  (see  the  editorial  published 
in  The  Re  cord- Union  ovL  Dec.  the  13th  (Appendix  pp. 
10,  15),  and  that  published  in  the  same  paper  on  Dec. 
the  20th  (Id.  p.  20).  And  after  the  disbarment  was 
inflicted  it  was  exuhed  in  and  bragged  about  upon 
this  same  ground  in  articles  published  in  The  Record- 
Union.  See  the  article  published,  on  Jan.  8,  1895, 
(x\ppendix  p.  34),  that  on  Jan.  the  14th  (Id.  p.  36), 
that  on  March  the  2d  (Id.  p.  43),  that  on  March  the 
4th  (Id.  p.  44),  that  on  March  the  9th  (Id.  p.  45),  and 
that  on  March  the  14th  (Id.  p.  46). 


i3.     The  Disbarment    Unlawful    Because  of    Being  a   Cruel 
and  Unusual    Punishment. 

To  disbar  an  attorney  for  punishment  is  to  inflict 
upon  him  cruel  and  unusual  punishment.  The  inflic- 
tion of  such  punishment  is  not  only  a  violation  of  natural 
justice,  but  is  also  expressly  forbidden  by  the  Constitu- 
tion of  California.  It  is  also  expressly  forbidden  by  the 
Constitution  of  the  United  States  and  by  the  Consti- 
tution of  every  State  in  the  Union.  In  England  the 
14th  Chapter  of  Magna  Charta  contained  an  express 
guaranty  against  such  punishments,  and  this  guaranty 
was  repeated  with  greater  emphasis  in  1688  in  the 
bill  of  rights.  It  is  from  that  bill  of  rights  that  the 
same  guaranty  in  the  various  American  Constitutions 
has  been  taken. 

In  the  Constitution  of  California  the  provision  is  as 
follows  (Art.  I,  Sec.  6): 


2CX) 

'•  Excessive  bail  shall  not  be  required,  nor  ex- 
cessive fines  imposed ;  nor  shall  cruel  or  unusual 
punishments  be  inflicted." 

Justice  Story,  in  his  treatise  on  the  United  States 
Constitution,  after  quoting  the  provision,  says  (§  1903): 

"  This  is  an  exact  transcript  of  a  clause  in  the 
bill  of  rights  framed  at  the  revolution  of  1688. 
The  provision  would  seem  to  be  wholly  unnec- 
essary in  a  free  government  since  it  is  scarcely 
possible  that  any  department  of  such  a  govern- 
ment should  authorize  or  justify  such  atrocious 
conduct.  It  was,  however,  adopted  as  an  admoni- 
tion to  all  departments  of  the  national  govern- 
ment, to  warn  them  against  such  violent  proceed- 
ings as  had  taken  place  in  England  in  the  arbitrary 
reigns  of  the  Stuarts.  In  those  times  a  demand 
of  excessive  bail  was  often  made  against  persons 
who  were  odious  to  the  Court  and  its  favorites  ; 
and  on  failing  to  procure  it,  they  were  committed 
to  prison.  Enormous  fines  and  amercements  were 
also  sometimes  imposed,  and  cruel  and  vindictive 
punishments  inflicted." 

In  Robinson  vs.  Miner  69  Mich.  549  (decided  in  1888) 
a  statute  regulating  the  sale  of  intoxicating  liquors 
was  held  to  violate  this  constitutional  guaranty,  because 
in  case  of  a  second  conviction,  it  provided  that  the  per- 
son convicted,  in  addition  to  other  punishment,  should 
for  five  years  be  debarred  from  selling  liquors  at  all, 
and  for  any  conviction  should  for  one  year  be  debarred 
from  becoming  a  surety  upon  any  bond  required  by  the 
act.  The  Court,  after  quoting  the  provision  of  the 
Constitution  last  above  cited,  said  : 

*  *  "  A  druggist  cut  off  for  five  years  from 
his  business  may  suffer  a  loss  of  immense  sums, 
and  so  may  any  large  manufacturer  or  large  dealer 


20I 


in  having  his  store  shut  up  and  his  business  barred. 
It  not  only  must  usuall}^  bring  about  bankruptcy, 
but  it  also  includes  what  is  meant  to  be  an  infa- 
mous disability — to  receive  credit  as  a  surety. 

^'  The  Great  Charter  made  it  unlawful  to  impose 
any  penal t}^  or  forfeiture  which  should  deprive  a 
man  of  what  is  translated  his  '  contentment ';  or  a 
person  in  an}-  kind  of  business,  whether  commer- 
cial or  otherwise,  of  the  means  of  continuing  that 
business.  Selden  speaks  on  this  subject  with  some 
force  in  censuring  the  fines  imposed  in  his  time, 
which,  he  says,  were  in  violation  of  this  provision, 
and  which  led,  atnong  other  things,  to  the  bills  of 
rights.  Seld.,  Tab.  Talk  'Fine.'  He  says  that 
the  meaning  of  the  Great  Charter  was  to  allow 
no  man  to  be  deprived  of  his  ability  to  live  accord- 
ing to  his  usual  estate  or  '  countenance.'  The 
great  fines  imposed  during  the  times  of  the  Stuarts, 
especially  b}^  the  Star  Chamber,  were  among  the 
worst  abuses  of  that  period  of  tyranny.  But  very 
few,  if  any,  instances  can  be  found  where  men 
were  made  to  forfeit  their  whole  business  receipts, 
and  none  certainly  where  they  were  made  incapable 
of  doing  their  ordinar}^  business.  The  forfeiture 
of  indefinite  interests  or  sums  onl}^  occurred  in 
felonies  when  the  penalty  was  death  as  well  as 
forfeiture.  It  was  in  felonies,  too,  that  disgrace 
and  incapacity  for  any  of  the  rights  of  citizen 
were  imposed  as  penalties.  These  punishments 
have  always  been  regarded  as  incompatible  with 
our  institutions,  and  there  can  be  no  doubt  that 
the  cruel  and  unusual  punishment  forbidden  by 
the  United  States  Constitution  had  special  refer- 
ence to  the  barbarities  of  the  old  law  of  felon}^  It 
is  equally  clear  that  any  fine  or  penalty  is  excess- 
ive which  seriously  impairs  the  capacity  of  gaining 
a  business  livelihood.  The  penalties  in  this  act, 
which  are  imperative  and  not  discretionary^  must 
necessarity  break  up  business,  and  are  not  measured 


202 

by  any  standard  of  proportion  or  amount.  The 
only  measure  of  restraint  is  the  value  of  the  busi- 
ness broken  up,  and  this  may  reach  tens  or  hun- 
dreds of  thousands  of  dollars. 

"It  is  safe  to  say  that  throughout  the  United 
States  any  fine  or  forfeiture  is  unusual  which  has 
not  some  limitation  of  value,  and  any  punishment 
is  unusual  which  forfeits  any  civil  rights." 

In  the  Case  of  the  Monopolies,  ii  Coke  84  (decided 
in  1602),  where  the  grant  of  a  monopoly  in  the  manu- 
facture of  playing  cards  was  held  void,  the  Court  said : 

"  And  the  common  law,  in  this  point,  agrees 
with  the  equity  of  the  law  of  God,  as  appears  in 
Deut.  xxiv:6,  '  No  man  shall  take  the  nether  or 
the  upper  millstone  to  pledge :  for  he  taketh  a 
man's  life  to  pledge.'  A  man's  trade  maintains  his 
life,  and  therefore  he  ought  not  to  be  deprived  or 
dispossessed  of  it  any  more  than  of  his  life." 

The  decision  in  the  Case  pf  Austin,  5  Rawle  203,  is 
shown  on  page  194  above. 

In  Ex  parte  Wall,  107  U.  S.  317,  Justice  Field  said: 

**  The  attorney  is  admitted  to  the  bar  only  after 
years  of  study.  The  profession  may  be  to  him  the 
source  of  great  emolument.  If  possessed  of  fair 
learning  and  ability,  he  may  reasonably  be  expected 
to  receive  from  his  practice  an  income  of  several 
thousand  dollars  a  year — equal  to  that  derived  from 
a  capital  of  one  or  more  hundred  thousand  dollars. 
To  disbar  him  having  such  a  practice  is  equivalent 
to  depriving  him  of  his  capital.  It  would  often 
entail  poverty  upon  himself,  and  destitution  upon 
his  family." 

An  illustration  of  the  extent  of  such  a '*  punish- 
ment "  may  be  seen  from  an  incident  that  took  place  in 


I 


203 


San  Francisco  on  June  30,  1898,  and  which  is  men-^ 
tioned  in  The  Examiner  oi  July  2,  1898.  It  was  the 
recording  of  deeds  showing  the  payment  of  one  million 
dollars  to  five  attorneys  of  San  Francisco  for  their  ser- 
vices in  but  a  single  case,  that  of  the  estate  of  James 
G.  Fair,  and  the  services  for  which  such  payment  was 
made  occupied  but  a  very  short  time,  and  were  begun 
and  ended  within  a  very  few  months. 

No  small  part  of  the  suffering  included  in  such  a 
punishment  is  that  of  being  rendered  utterly 
incapable  of  assisting  one's  family  or  friends  or  fellow 
men — the  daily  and  nightly  torture  of  witnessing 
appeals  for  such  assistance  and  being  powerless  to 
help. 

Lord  Roseberry,  in  an  address  delivered  in  May, 
1899,  s^i^  truly  : 

''  When  I  analyze  it,  the  one  great  advantage  of 
wealth  is  this :  That  when  those  we  love  are  sick 
and  weak,  or  aged,  you  can  call  in  to  their  assist- 
ance the  best  medical  advice  and  you  can  make  a 
change  of  climate.  For  their  benefit  you  can  pro- 
long life,  as  compared  with  the  life  of  the  poor,, 
not  merely  in  length  of  years,  but  in  the  comfort 
of  existence.  That  I  believe  to  be  the  sole  great 
advantage  the  rich  have  over  the  poor." 

Such  a  punishment  is  the  punishment  of. death 
itself,  a  death  preceded  by  years  of  torture. 

Sir  Walter  Scott  narrates  an  interview  in  which 
Ramorny  was  advising  the  Duke  of  Rothsay  to  have 
his  uncle  murdered.  When  the  Duke  said  sternly, 
''  You  would  not  venture  to  dip  your  hands  in  royal 
blood  ?  "     Ramorny  replied  : 

"  Fie,  my  Lord — at  no  rate — blood  need  not  be 


204 

shed ;  life  may,  nay,  will  be  extinguished  of  it- 
self. For  want  of  trimming:  it  with  fresh  oil,  or 
screening  it  from  a  breath  of  wind,  the  quivering 
light  will  die  in  the  socket.  To  suffei  a  man  to 
die  is  not  to  kill  him." 

To  which  the  Duke  answered  : 

"  True— I  had  forgot  that  policy.  Well,  then, 
suppose  my  uncle  Albany  does  not  continue  to 
live— I  think  that  must  be  the  phrase" 

Among  the  tortures  of  such  a  punishment  there  are 
those  which  are  essentially  the  same  as  in  a  death  from 
famine.  The  following  passage  in  the  speech  of  Pren- 
tiss, asking  relief  for  the  sufferers  from  the  great 
famine  in  Ireland,  describes  such  tortures : 

"  In  battle,  in  the  fullness  of  his  pride  and 
strength,  little  recks  the  soldier  whether  the  hiss- 
ing bullet  sings  his  requiem  or  the  cords  of  life 
are  severed  by  the  sharp  steel.  But  he  who  dies 
of  hunger  wrestles  alone,  day  after  day,  with  his 
grim,  unrelenting  enemy.  He  has  no  friend  to 
cheer  him  in  the  terrible  conflict,  for  if  he  l\ad 
friends  how  could  he  die  of  hunger  ?  He  has  not 
the  hot  blood  of  the  soldier  to  maintain  him,  for 
his  foe,  vampire-like,  has  exhausted  his  veins. 
Famine  comes  not  up  like  a  brave  enemy,  storm- 
ing by  a  sudden  onset  the  fortress  that  resists. 
Famine  besieges.  He  draws  his  lines  around  the 
doomed  garrison  ;  he  cuts  off  all  supplies  ;  he 
never  summons  to  surrender,  he  gives  no  quarter. 
Alas  for  poor  human  nature !  How  can  it  sustain 
the  fearful  warfare?  *  *  At  last  the  mind, 
which  at  first  bravely  nerved  itself  for  the  con- 
test, gives  way  under  the  mysterious  influences 
that  govern  its  union  with  the  body.  Then  he 
begins  to  doubt  the  existence  of  an  overruling 
Providence,  he    hates  his    fellow  men    and  glares 


205 

upon    them     *     *     and,    it    may    be,   dies    blas- 
pheming." 

But  in  such  a  punishment  there  are  other  tortures 
no  less  hard  to  endure — tortures  that  come  from  the 
ever  present  sense  of  being  wickedly  wronged  and 
oppressed  by  cowardly  wretches  in  the  guise  of  men,  in 
the  name  of  the  State,  and  by  using  to  such  an  end  the 
power  of  the  people,  and  under  color  of  the  justice  of 
the  State.  As  said  by  Sir  Edward  Coke  (2  Inst.  48): 
"  And  it  is  the  worst  oppression  that  is  done  by  color 
of  justice." 

Let  any  one  who,  at  great  expense  and  by  years  of 
hard  and  unremitting  toil  and  study,  has  made  for  him- 
self an  honorable  business  or  profession,  who  has  a 
refined  and  delicate  wife  to  support  and  care  for,  and 
children  to  rear  and  educate,  and  whose  entire  means 
is  his  income  from  that  profession  or  business ;  let  any 
such  man  ask  himself  whether  he  would  be  content  to 
have  his  whole  business  or  profession  taken  from  him, 
and  to  be  thrown  into  the  degraded  position  of  a  dis- 
barred lawyer,  to  be  disgraced  and  utterly  ruined,  and 
all  upon  the  ground  of  a  "punishment"  upon  him  for 
having  produced  such  a  treatise,  for  attempting  to 
show  to  a  Court  of  Justice,  on  behalf  of  a  widow  and 
her  daughters,  such  a  case  as  is  stated  in  outline  on 
pages  16  to  59  above — to  have  all  this  done  to  him  in  a 
decision  reeking  with  the  extreme  of  bad  faith  and 
basest  lies,  corrupting  the  Court,  violating  the  very 
first  principles  of  justice,  violating  clear  provisions  of 
the  Constitution,  and  the  law  which  ought  to  be  a  sure 
defense  to  even  the  meanest  human  being,  and  by  men 
acting  at  the  same  time  as  his  accusers,  and  as  judges 
and  jury  in  their  own   case  and  executioners    of  the 


2o6 

sentence— to  present  the  case  again  to  his  accusers  and 
persecutors,  demonstrating  point  by  point  the  illegality 
and  injustice  and  oppression  done  him,  and  only  to 
have  them  reaffirm  it  all,  and  deliberately  and  relent- 
lessly, in  violation  of  the  Constitution,  refuse  to  state 
any  ground  of  their  decision.  Let  the  reader  suppose 
himself  vainly  struggling  under  such  outrage  for 
month  after  month,  until  the  months  become  years, 
seeing  every  day  such  cruel  and  wicked  oppression 
grinding  his  wife  and  children  as  well  as  himself.  Let 
him  also  see  the  case  so  published,  by  its  corrupt  and 
wicked  authors,  in  the  official  reports,  as  this  disbar- 
ment case  has  been,  giving  in  full  the  accusation  and 
•everything  said  by  his  accusers  against  him,  and  utterly 
suppressing  his  answer  to  the  accusation  and  every- 
thing said  by  him  in  his  defense,  so  as  to  misrepresent 
him  and  injure  his  good  name  to  the  utmost  and  per- 
manently. 

In  this  particular  case  everything  within  the  scope 
of  such  punishment  has  been,  and,  after  the  lapse  of 
more  than  four  and  a  half  years,  is  still  being  actually 
and  unrelentingly  inflicted.  Everything  stated  on 
pages  1 19-122  above  has  been  actually  inflicted.  I 
mention  this  particularly  because  the  authors  of  this 
oppression,  by  means  of  their  control  of  the  newspapers, 
are  constantly  and  with  unmitigated  falsehood  stating 
to  the  people  that  such  is  not  the  case.  For  instance, 
in  one  of  the  venal  weeklies  of  San  Francisco,  in  a 
number  issued  March  4,  1899,  there  appeared  an  article 
attempting,  with  gross  falsehood,  to  justify  the  disbar- 
ment, and,  among  other  things,  saying : 

*     *     "  His  sentence  made  no  difference  to  him.     He  has 
practiced  away  as  usual  ever  since,  and,  while  not  heard  at 


207 

all  by  the  Supreme  Court,  he  has  appeared  before  more  than 
one  department  of  the  Superior  Court,  by  dint  of  getting 
himself  substituted  as  plaintiff  in  his  action.  More  than 
that,  *  *  *  he  is  a  good  lawyer,  and  has  the  reputation 
of  being  one  of  the  best  brief  writers  in  the  State  of  Cali- 
fornia.    He  does  business  that  way  now." 

I  wish  those  who  read  these  pages  to  know  that  all 
such  statements  to  the  effect  that  I  have  still  been  able 
to  practice  my  profession  are  utterly  false.  Since  the 
disbarment  I  have  not  been  employed  in  the  prepara- 
tion of  so  much  as  a  single  brief  The  allusion  to  my 
appearance  in  the  Superior  Court  has  no  other  support 
than  my  appearance  there  in  only  one  department  and 
in  only  two  small  cases  which  depended  upon  the  same 
facts  and  were  tried  together  as  one  case.  In  the  Fed- 
eral courts  I  have  appeared  in  one  case  only,  and  in 
that  received  no  fee.  My  ofl&ce  practice  also  was  utterly 
destroyed  by  the  disbarment.  And  the  reason  why  such 
has  been  the  effect  of  the  disbarment  is  well  known. 
Such  has  been  the  corrupting  and  demoralizing  effect 
of  the  practices  of  The  Southern  Pacific  Company  in 
this  State  that  every  one  lives  in  an  atmosphere  of 
craft,  suspicion,  fraud,  violence,  fear  and  what  is  called 
^'  policy."  People  emplo}^  a  lawyer  only  in  the  hope  of 
obtaining  benefit.  They  have  refrained  from  employing 
me  out  of  fear  that  if  they  should  be  known  to  do  so 
they  would  for  that  reason  be  marked  out  for  destruc- 
tion. As  stated  on  page  14  of  this  paper,  the  authors 
of  the  disbarment  wield,  in  its  most  effective  form,  the 
terrible  weapon  of  the  boycott. 


t 


But  to  appreciate  to  its  full  extent  all  that  is  included 
such  a  punishment,  it  is  needful  to  consider  what  is 

the  nature  and  extent  of  the  right  to  adopt  and  practice 

the  law  as  a  profession. 


I 


2o8 


i3.    The  Right  Which  an  Attorney  at  Law  Has  to  the  Prac- 
tice of    his  Profession. 

The  Right  of  the  People  to    Employ    and    to    be    Represented  by 
Attorneys  at  Law. 

In  the  editorials  published  by  The  Southern  Pacific 
Company  in  their  newspapers  before  the  mock  hearing 
of  the  citation — and  with  the  plainly-evident  motive 
to  bolster  the  outrage  which  was  about  to  be  inflicted  and 
to  divert  attention  from  the  villainy  of  the  Associate  Jus- 
tice Ralph  C.  Harrison,  which  was  exposed  in  the  brief, 
the  position  of  the  attorney  at  law  is  studiously  and  cun- 
ningly represented  as  that  of  an  underling, a  subordinate, 
a  servile  creature  ''  licensed  to  plead  "  (see  the  Appen- 
dix p.  14),  having  no  right  but  only  a  ^^ privilege^'' 
(Id).  His  natural  and  inalienable  right  to  a  hearing  is 
called  "  the  privilege  accorded  "  (Id.  p.  17).  Over  and 
over  again  he  is  called,  with  the  plainly-evident  pur- 
pose to  belittle  his  position,  and  to  represent  it  as 
that  of  a  servile  underling,  an  "  officer  of  the  court  '^ 
(Id.  p.  10),  "  the  unworthy  shoulders  of  its  officer  " 
(Id).  For  the  same  purpose  such  expressions  are  used 
as  '*  officers  of  the  court"  (Id.  p.  14),  ^^  an  arrogant 
and  browbeating  San  Francisco  lawyer"  (Id.  p.  15), — 
''  the  Court  cited  him  as  an  officer  of  its  own  "  (Id.  p. 
19) — *'  generally  neither  press  nor  people  take  concern 
when  a  court  castigates  one  of  its  own  attorneys'^ 
(Id).  And  in  connection  with  these  expressions  the 
victim  is  called  ''  Attorney  Horace  W.  Philbrook  "  (Id. 
p.  6),  '^Attorney  Philbrook"  (Id.  p.  10),  ''Attorney 
Philbrook"  (Id.  p.  11). 

All  this  belittling  of  the  profession  of  an  attorney 
at  law,  the  idea  and  the  very  terms  used  and  the  iden- 


209 

Ileal  motive  was  copied  with  the  utmost  precision  into 
the  judgment  of  disbarment.  Adopting  the  terms 
*'  Attorney  Horace  W.  Philbrook  "  of  The  Evening  Post 
and  the  terms  *'  Attorney  Philbrook  "  and  *^  licensed  to 
practice"  of  The  Record-Union^  W^^  judgment  of  dis- 
barment opens  with  the  words :  ^'  Horace  W.  Phil- 
brook, a  licensed  attorney  "  (see  the  Appendix  p.  22). 
The  Record-Union^ s  transformation  of  the  victim^s  in- 
alienable right  to  a  hearing  into  a  *'  privilege  accorded" 
was  copied  in  the  words  "  he  was  allowed  to  make  an 
oral  argument  in  his  own  defense."  The  Record- 
Union's  exhibition  of  the  victim  as  a  mere  underling, 
a  servile  creature,  owned  by  the  Court,  "  one  of  its 
own  attorneys,"  an  *'  officer  of  its  own  "  is  copied  in 
the  words,  "  This  is  a  palpable  attempt  to  influence 
a  decision  of  this  Court  by  base  appeals  to  the  supposed 
timidity  of  its  Justices,  and^  made^  too^  by  an  officer  of 
the  Courf''  (Id.  p.  27),  and  further  on  in  the  words, 
"  And  when  the  punishment  of  such  an  offense  is 
within  the  jurisdiction  of  the  Court,  as  in  the  case  of 
one  of  its  own  officers  "  (Id.  p.  28) .  The  Record-  Union^s 
transformation  of  the  victim's  right  to  his  profession 
into  a  mere  "privilege"  appears  in  the  judgment  of 
disbarment  in  the  words  of  Wm.  H.  Beatty,  the  Chief 
Justice  :  "  As  to  the  character  of  the  penalty  I  con- 
cur in  the  view  of  the  Court  that  it  should  be  suspen- 
sioiiof  his  privileges  as  an  attorney"  (Id.  p.  32). 

And  after  the  disbarment  was  inflicted  it  was  upheld 
by  The  Southern  Pacific  Company  in  editorials  pub- 
lished in  The  Re  cord' Union  ^  and  by  means  of  that  same 
studious  and  cunning  belittling  of  the  profession  of 
attorney  at  law.  See  the  expressions  used :  *^  The 
Limits  of  an  Attorney's  Privilege"  (Appendix  p.  34), 


2IO 


''  approve  the  Court  for  pumshing  one  of  its  own  oflR- 
cers"  (Id.  p.  36),  ''the  courts  *  *  to  curb  their  own 
officers  "  (Id.  p.  42).  ''  The  courts  ought  to  have  the 
power  *  *  to  castigate  their  own  officers"  (Id.  p.  46), 
"the  power  to  discipline  the  officers  of  the  Court "   (Id. 

p.  48). 

The  expressions  quoted  above  are,  however,  but  ex- 
amples of  the  spirit  and  tone  of  the  entire  judgment 
of  disbarment,  a  spirit  and  tone  which  follows  with  th 
utmost  precision  the  editorials  of  The  Southern  Pacifi 
Company. 

And  here,  too,  the  judgment  of  disbarment  is  utterly 
false  throughout. 

An  example  of  what  is  meant  when  an  attorney  at 
law  is  honestly  spoken  of  as  an  "  officer  of  the  court 
may  be  seen  in  Lawyers^  Tax  Cases  55  Tenn.  651, 
where  he  is  declared  to  be  "  an  officer  in  a  court  of  jus- 
tice, who  is  employed  by  a  party  in  a  cause  to  manage 
the  same  for  him  as  his  advocate.^' 

The  attorney  is  "an  officer  in  a  court  ^  but  he  is  not 
owned  by  the  court — he  is  not  "  an  officer  of  its  oivn^ 
one  of  ^'its  own  officers,"  as  in  this  judgment  of  disbar- 
ment he  is,  by  The  Southern  Pacific  Company  an 
their  corrupt  Supreme  Court  of  California,  falsely  an 
wickedly  declared  to  be.  On  the  contrary  he  is  ''  em 
ployed  by  a  party  in  a  cause  to  manage  the  same  fo? 
him  as  his  advocate.''  If  he  could  be  said  to  be  ownec 
by  anybody,  it  would  be  by  the  party ^  by  the  cliefit^  but 
never  by  the  court.  This  fact,  though  plain  to  even  the 
dullest  understanding,  will  now  be  shown  to  be  ex 
pressly  declared  by  the  constitution  and  the  law. 

The  right  to  practice  in  the  courts  the  profession  o: 
attorney  at  law,  and  the  right  of  the  people  to  employ 
and  to  be  represented  by  attorneys  at  law,  have  always 


I 


211 


been  expressly  guaranteed  by  the  Constitution  of  Cali- 
fornia. 

In  the  Constitution  adopted  in  1849  the  provision 
was  as  follows  (Art.  I,  Sec.  8)  : 

*  ^*-  '^  and  in  every  trial  in  any  court  ivhafever^ 
the  party  accused  shall  be  allowed  to  appeal'  a7id 
defend  in  person  and  with  counsel,  as  in  civil 
actions!'^ 

Here  was  an  express  guaranty  of  the  right,  for 
"  every  trial ^^  and  not  only  in  criminal  cases,  but  "  in 
civil  actions''^  and  ^'' in  any  court  whatever ^^  ^  right 
guaranteed  in  the  constitution  itself. 

The  Constitution  of  1879  is  more  full  in  its  guar- 
anty of  the  same  right.  Besides  a  provision  substan- 
tially the  same  as  in  that  of  1849,  j^^^t  quoted,  it 
expressly  makes  the  profession  of  the  attorney  at  law 
absolutely  essential  to  the  government  of  the  State, 
expressly  providing  (Art.  vi.  Sec.  23)  that  all  Superior 
Court  Judges  and  all  Justices  of  the  Supreme  Court 
shall  be  chosen  from  members  of  that,  profession.  It 
also  provides  (Art.  i,  Sec.  21)  :  "  nor  shall  any  citizen, 
or  class  of  citizens,  be  granted  privileges  or  immunities 
which,  upon  the  same  terms,  shall  not  be  granted  to  all 
citizens,"  and  also  (Art.  xxir.  Sec  11)  that  ^' all  laws 
relative  to  the  present  judicial  system  of  the  State 
shall  be  applicable  to  the  judicial  system  created  by  this 
Constitution  until  changed  by  legislation."  And  among 
the  laws  '^  relative  to  the  present  judicial  system  of  the 
State,"  thus  expressly  adopted  by  the  Constitution,  is 
the  following  (C.  C  P.  §  275)  : 

"  Any  citizen  or  person  resident  of  this  State 
who  has  bona  fide  declared  his  or  her  intention  to 
become  a  citizen   in   the   manner  required  by  law, 


212 

of  the  age  of  21  years,  of  good  moral  character, 
and  who  possesses  the  necessary  qualifications  of 
learning  and  ability,  is  entitled  to  admission  as 
attorney  in  all  the  courts  of  this  State." 

And  even  that  is  not  all.  There  are  many  other 
provisions  of  the  codes  and  other  statutes  of  California, 
all  of  them  expressly  adopted  by  the  Constitution, 
which  ijuaranty  over  and  over  again  the  same  right. 

In  People  vs.  Napthaly  105  Cal.  641,  a  conviction  of 
crime  was  held  unlawful  and  set  aside  upon  the  ground 
that  the  accused,  though  himself  an  attorney  at  law,  had 
not  been  informed  by  the  court  of  his  right  to  employ 
and  be  represented  by  an  attorney  at  law. 

Such  then  is,  in  California,  the  profession  of  attorney 
at  law.  It  is  not  a  mere  ^'  privilege,"  it  is  a  right.  It 
is  one  of  the  lawful  and  common  pursuits  of  life.  It  is 
the  right  of  the  people.  It  is  a  right  as  high  as  the 
highest  right  of  the  Supreme  Court  itself,  being  a  right 
expressly  established  and  guaranteed  by  the  same  in- 
strument by  which  the  Supreme  Court  was  created. 

And  such,  too,  is  the  right  in  other  States  of  the 
Union.  In  the  Case  of  Austin  5  Rawle  203,  Chief 
Justice  Gibson,  one  of  the  greatest  of  American  judges, 
said  : 

*  *  '^  to  subject  the  members  of  the  profession 
to  removal  at  the  pleasure  of  the  court,  would, 
leave  them  too  small  a  share  of  the  independence 
necessary  to  the  duties  they  are  called  to  perform 
to  their  clients  and  to  the  public.  *  *  It  is  indis- 
pensable to  the  purpose  of  its  creation  to  assign  it 
a  high  and  honorable  standing,  but  to  put  it  above 
the  judiciary,  whose  official  tenure  is  good  behav- 
ior, and  whose  members  are  removable^  from  office 
by  the  legislature,  would  render  it  intractable  ;  and 


213 

it  is  therefore  necessary  to   assign  it  but   an  equal 
share  of  independence." 

And  the  importance  of  the  right  to  employ  and  to 
be  represented  by  an  attorney  at  law  in  the  conduct  of 
a  suit  is  supreme.  Any  person  may  at  any  time  be- 
come involved  as  a  party  to  a  suit  or  proceeding  in  the 
courts, — so  involved  that  everything  of  value  to  him, 
rights  more  important  to  him  than  life  itself,  may  be  at 
stake.  And  even  though  he  may  be  a  lawyer  himself, 
still  it  may  be  necessary  to  his  safety  to  urge  his  per- 
sonal character  and  qualities,  things  of  which  he  can- 
not speak  for  himself.  So  impossible  is  it  for  a  person 
to  act  properly  or  adequately  for  himself  in  such  a  situ- 
ation, that  to  deny  the  right  to  an  attorney,  or  to  have 
that  attorney  owned  by  the  Court^  is  to  deny  to  the 
party,  the  client,  the  fundamental  right  of  self-defense. 

The  court  is  for  the  use  of  the  individual ;  the  in- 
dividual is  not  for  the  use  of  the  court.  The  attorney 
is  employed  by  the  individual,  by  the  party,  and  his 
duty  is  to  the  party,  to  the  client.  And  all  this  is  em- 
bodied in  the  guaranty  of  the  Constitution  just  stated. 

In  Lawyers*  Tax  Cases  55  Tenn.  565,  the  Court  said: 

''  The  rights  of  the  attorney  in  his  capacity  as 
such,  are  the  rights  of  the  people,  involving  their 
lives,  liberty  and  property,  necessary  to  the  well 
being  and  good  order  of  society,  and  absolutely 
indispensable  to  the  safety  of  all  well  appointed 
governments." 

In  Dickens*  Case  67  Pa.  St.  169,  the  Court  said : 

'^  The  necessities  of  men,  in  a  high  state  of 
civilization,  require  the  profession  of  the  law  as  a 
distinct  calling  ;  one  to  be  exercised  by  men  trained 
to  it  by  a  long  course  of  study,  and  qualified  by 


214 

skill  and  learning  to  understand,  protect  and  assert 
the  rights  of  others,  who  by  reason  of  the  state  of 
society,  or  their  own  inability,  can  not  act  for 
themselves."  *  * 

To  the  powerful  and  wealthy  organization, The  South- 
ern Pacific  Company,  the  right  to  be  freely  and  fully 
represented  by  an  attorney  at  law  is  of  no  importance; 
for  the  wealth  and  power  of  their  organization  are  to 
them  a  sure  and  unfailing  guaranty  of  the  full  benefit 
of  being  so  represented.  It  is  the  single  individual 
that  has  need  of  the  right  to  be  so  represented ;  and 
the  more  defenseless  he  is  the  more  l^e  has  need  of  that 
right.  In  the  case  here  the  denial  of  it  to  Mrs.  Fanny 
Levinson  and  her  daughters  was  a  part  of  the  denial  of 
justice;  it  denied  them  even  so  much  as  the  form  of  a 
hearing  of  their  case. 

To  obtain  a  full  advantage  of  their  use  of  the  courts, 
the  powerful  organization.  The  Southern  Pacific 
Company,  often  need  to  control  the  attorney  of 
their  victims.  One  such  case  is  stated  on  page 
64-75  above,  where,  in  order  to  use  their  injunc- 
tion suit  with  supreme  success,  it  was  needful  for 
them  not  only  to  control  the  attorneys  who  represented 
the  people,  but  to  conceal  from  the  people  the  fact  of 
their  having  such  control.  In  the  judgment  of  disbar- 
ment (see  the  Appendix  p.  26)  they  have  condemned 
a  full  and  bold  assertion  of  the  rights  of  the  victims 
as  "  unbridled  license."  In  the  same  spirit  they  made 
for  use  in  their  injunction  suit  a  special  bridle  for  one 
particular  attorney  whom  they  were  to  set  up  as  appear- 
ing ostensibly  against  them — thereby  to  reduce  his 
utterances  against  them  to  ''  bridled  license.^'  In  the 
case  here,  in  order  to  whitewash  the  villainy  of  their 


I 


215 


agent,  the  Associate  Justice  Ralph  C.  Harrison,  it  was 
needful  to  control  the  attorney  who  had  exposed  him. 
To  that  end  they  announced  in  The  Evening  Post  of 
Dec.  the  13th  :  "  We  hope  that  the  Supreme  Court  will 
allow  him  to  withdraw  his  insolent  and  disrespectful 
brief  and  give  him  an  opportunity  to  apologize  "  (see 
the  Appendix  p.  9).  Owning  the  Court,  it  was  still 
needful  to  their  complete  success  in  using  it,  to  have 
all  attorneys  uphold  its  decisions.  They  therefore 
demanded,  as  in  The  Record-Union  of  Dec.  the  13th, 
that  all  attorneys  at  law  ''shall,  as  officers  of  the  court, 
maintain  its  dignity  and  set  the  example  of  respect  for 
it  which  it  demanded  of  all."  And  this  they  followed 
up  by  making,  out  of  their  editorials  in  The  Record- 
Union^  the  judgment  of  disbarment,  making  those  edi- 
torials with  their  false  pretense  that  the  court  owns  the 
attorney^  that  he  is  one  of  '^  its  own  officers  "  (Id.  pp.  19, 
28)  a  judgment  of  the  Supreme  Court  of  the  State,  and 
placing  those  editorials,  as  such  judgment,  in  the  re- 
ports of  the  decisions  of  the  Court  as  a  precedent  hav- 
ing actually  (though  falsely)  the  force  of  law. 

And  all  this  has  been  put  into  actual  and  common 
practice.  Nothing  is  more  common  than  to  see  in  the 
courts  the  attorneys  of  the  great  corporations  bearing 
themselves  with  easy  confidence,  as  if  exemplifying — 
to  use  the  words  of  Burke — '*  the  urbanity  and  polite- 
ness of  extortion  and  oppression  ";  while,  with  a  few 
exceptions,  it  is  the  common  practice  for  attorneys  who 
appear  only  for  individuals,  to  address  the  courts,  not 
like  freemen  claiming  rights,  but  in  the  manner  of 
cringing  underlings  begging  for  favors. 

To  own  any  person^s  attorney,  to  be  able  to  control 
the  jnanner  in  which  he  handles  the  case,  as  in  effect  to 


2l6 

own  the  person  whom  that  attorney  represents.  To  be 
able  to  destroy  the  attorney  is  to  be  able  to  destroy  the 
client  employing  that  attorney. 

Take  now  the  case  of  the  murder  of  the  child  by  its 
father  stated  on  p.  122  above.  In  ancient  times  a  father 
was  held  to  own  his  children  and  to  have  the  right  to 
destroy  any  of  them.  In  those  times  the  father  would 
have  justified  his  crime  by  saying  :  "  It  was  one  of  my 
own  children.     I  had  the  right  to  destroy  her." 

So  in  this  disbarment.  Its  authors  justify  it  by  say- 
ing that  the  Court  owns  the  attorney,  that  he  is  one  of 
^Hts  own  officers^''  and  that  therefore  it  has  the  right  to 
destroy  him — they  say  ^'  when  the  punishment  of  such 
an  offense  is  within  the  jurisdiction  of  the  Court,  as  in 
the  case  oi  one  of  its  own  officers^^  (see  the  Appendix  p. 
28).  But  what  was  aimed  at  was  to  destroy  the  cause 
of  Mrs.  Levinson  and  her  daughters.  And  the  justifi- 
cation that  the  Court  owned  the  attorney  was  dictated 
by  The  Southern  Pacific  Company,  who  owned  the 
Court  and  used  it.  What  is  really  meant  is  that  The 
Southern  Pacific  Company  aims  to  own  all  attorneys, 
that  it  may  own  effectually  and  destroy  at  will  the 
rights  of  any  and  every  individual. 


Consider  now  the  right  of  the  attorney  to  his  profes- 
sion. The  profession  of  the  attorney-at-law  is  a  lawful 
and  necessary  branch  of  labor,  a  useful  and  lawful  vo- 
cation. 

In  the  Lawyers^  Tax  Cases,  55  Tenn.  654 : 

''  The   right   to    practice    law    is    the    right   of 
thought  and  mental  labor  common  to  all." 

In  People  vs,  Marx^  99  N.  Y.  386  (decided  in  1885), 
the  Court  said : 


217 

"  And  the  fourteenth  amendment  to  the  Consti- 
tution of  the  United  States  provides  that  '  no  tate 
shall  make  or  enforce  any  law  which  shall  abridge 
the  privilege  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  state  deprive  any  per- 
son of  life,  liberty  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws.'  These  con- 
stitutional safeguards  have  been  so  thoroughly 
discussed  in  recent  cases  that  it  would  be  super- 
fluous to  do  more  than  refer  to  the  conclusions 
which  have  been  reached.  Among  these  no  propo- 
sition is  now  more  firmly  settled  than  that  it  is  oue 
of  the  fundamental  rights  and  privileges  of  every 
American  citizen  to  adopt  and  follow  such  lawful 
industrial  pursuit,  not  injurious  to  the  community, 
as  he  may  see  fit.  *  *  *  Liberty,  in  its  broad 
sense,  as  understood  in  this  country,  means  the 
right  not  only  of  freedom  from  servitude,  imprison- 
ment or  restraint,  but  the  right  of  one  to  use  his 
faculties  in  all  lawful  ways,  to  live  and  work  where 
he  will,  to  earn  his  livelihood  in  any  lawful  call- 
ing, and  to  pursue  any  lawful  trade  or  avocation." 

In  Ex  parte  Parrott^  6  Sawyer  349,  the  provisions  of 
the  Constitution  of  California  forbidding  corporations 
to  employ  Chinese  were  declared  void  and  set  aside  by 
the  United  States  Circuit  Court  as  being  a  violation  of 
the  guaranty  of  the  fourteenth  amendment  of  the 
United  States  Constitution  just  quoted.  Among  the 
grounds  of  the  decision  the  Court  adopted  the  following 
language  of  Justice  Bradley  of  the  United  States  Su- 
preme Court : 

"In  my  judgment  the  right  of  any  citizen  to 
follow  whatever  lawful  employment  he  may  choose 
to  adopt  *  *  is  one  of  the  most  valuable  rights, 
and  one  which  the  legislature  of  a  State  cannot  in- 


2l8 

vade,  whether  restrained  by  its  own  Constitution 
or  not.  *  *  This  right  to  choose  one's  calling 
is  an  essential  part  of  that  liberty  which  it  is  the 
object  of  government  to  protect ;  and  a  calling 
when  chosen  is  a  man's  property  and  right." 

In  setting  aside  the  disbarment  of  Stephen  J.  Field 
^People  ex  rel.  Field  vs.  Turner^  i  Cal.  143),  the 
Court  said : 

''  An  attorney,  by  his  admission  as  such,  acquires 
rights  of  which  he  cannot  be  deprived  at  the  dis- 
cretion  of  a  court  any  more  than  a  physician  of  the 
practice  of  his  profession,  a  mechanic  of  the  exer- 
cise of  his  trade,  or  a  merchant  of  the  pursuit  of 
his  commercial  avocations." 

This  language  was  reaffirmed  twelve  years  later  in 
Fletcher  vs.  Daingerjield^  20  Cal.  429. 

And  language  to  the  same  effect  was  used  by  the 
Supreme  Court  of  the  United  States  in  Ex  parte  Gar- 
land, 4  Wall.  333. 

In  Ex  parte  Houghton,  67  Cal.  517,  the  Supreme 
Court  of  California,  in  1885,  in  refusing  to  disbar  one 
Houghton,  an  attorney,  said: 

"A  judgment  against  the  respondent  will  de- 
prive him  of  personal  and  property  rights." 

In  Ex  parte  Steinman,  96   Pa.  St.  236-7,  the  Court 

said  : 

"  The  office  of  an  attorney  is  his  property,  and 
he  cannot  be  deprived  of  it  unless  by  the  judgment 
of  his  peers  or  the  law  of  the  land,  this  last  phrase 
meaning,  as  we  have  been  taught  by  Lord  Coke, 
'  due  process  of  law.'  " 

In  Longshore  Printing  Co.  vs.  Howell.,  26  Oregon. 
546  (decided  in  1894),  the  Court  said: 


219 

"  Every  person  has  a  right  to  require  that  he  be 
protected  in  his  property  rights.  The  labor  and 
skill  of  the  workman,  or  the  professional  man,  be 
it  of  high  or  low  degree,  the  plant  of  a  manufac- 
turer, the  equipment  of  a  farmer,  the  investments 
of  commerce,  are  all   in  an  equal  sense  property." 

The  right  of  the  attorney  to  his  good  name  is  also 
one  of  his  inalienable  rights.* 

The  rights  of  the  attorney  to  his  profession  and  good 
name  are  also  representative  of  the  rights  of  his  wife 
and  children.f 

In  Dent  vs.  West  Virginia^  129  U.  S.  121,  it  was 
said  by  the  Supreme  Court  of  the  United  States : 

"  It  is  undoubtedly  the  right  of  every  citizen  of 
the  United  States  to  follow  any  lawful  calling, 
business  or  profession  he  may  choose,  subject  only 
to  such  restrictions  as  are  imposed  upon  all  per- 
sons of  like  age,  sex  and  condition.  This  right 
may,  in  many  respects,  be  considered  as  a  distin- 
guishing feature  of  our  republican,  institutions. 
Here  all  vocations  are  open  to  every  one  on  like 
conditions.  All  may  be  pursued  as  sources  of 
livelihood,  some  requiring  years  of  study  and  great 
learning  for  their  successful  prosecution.  The 
interest,  or,  as  it  is  sometimes  termed,  the  estate 
acquired  in  them — that  is,  the  right  to  continue 
their  prosecution  is  often  of  *great  value  to  the  pos- 
sessors, and  cannot  be  arbitrarily  taken  from  them, 
any  more  than  their  real  and  personal  property 
can  be  thus  taken." 

In  Yick  Wo  vs.  Hopkins,  118  U.  S.  369-370,  the  Su- 
preme Court  of  the  United  States  held  a  laundry  ordi- 

*  Civil  Code  of  Cah.  .Sec.  43 ;  Blackstone  Comm.  Vol.  i,  129  ;  Gulf,  Col.  andSanla  Fe  R.  R. 
Cr-.  7>y.  Ellis,  165  II.  S.  159;  Entick  vs.  Larringlon.  19  Howell's  State  Trials  1029,  ic66  ;  Boyd  vs. 
Untied  States,  116  U.  S.  626. 

t  Bradivell  vs.  Illinois,  16  Wall,  141;  Ex  parte  tVall..  107  U.  S.  317-18;  Civil  Code  of  Cat, 
Sees.  174,  196. 


220 


nance  of  San  Francisco  to  be  a  violation  of  both  the 
13th  and  14th  amendments  of  the  Constitution  of  the 
United  States,  and  because  the  ordinance  was  aimed  at 
Chinese  laundrymen  and  gave  the  Board  of  Supervisors 
the  power  arbitrarily  to  grant  or  withhold  a  laundry 
license  in  each  particular  case.     The  Court  said : 

*  ♦  ♦  "For  the  very  idea  that  one  man  may 
be  compelled  to  hold  his  life,  or  the  means  of  liv- 
ing, or  any  material  right  essential  to  the  enjoy- 
ment of  life  at  the  mere  will  of  another,  seems  to 
be  intolerable  in  any  country  where  freedom  pre- 
vails as  being  the  essence  of  slavery  itself." 

In  Ex  parte  Wall.  107  U.  S.  302,  Justice  Field  has 
summarized  all  the  decisions  which  treat  the  attorne3'''s 
right  to  his  profession  as  less  than  what  it  is  above  shown 
to  be,  by  pointing  out  that  in  every  such  decision  the 
Judges  making  it  were  sitting  as  Judges  of  their  own 
case,  and  engaged  in  oppressing  the  attorney.  It  is 
thoroughly  settled  that  such  decisions  are  entitled  to 
no  respect.* 

But  nowhere  can  there  be  found  any  case  in  any  way 
comparable  in  wrong  and  outrage  with  the  particular 
disbarment  here  exhibited. 


i4.  The  Disbarment  Unlawful  Because  a  Conviction  and 
Punishment  for  Crime  and  by  a  Court  Without  Juris- 
diction to  Convict  or  Sentence  for  Crime  and  Without 
Trial  by  Jury, 

In  Ex  parte  Garland  /\.  Wall.  333,  (decided  in  1866) 
e  Supreme  Court  of  the  United  States   held  an  act  of 


*  Washinf^ton  Insurance  Co.  vs.  Price,  Hopkins  Ch.  2;  McCuUoch  vs.  Maryland,  4  Wheat. 
401;  Entick  vs.  Carrington,  19  Howell's  State  Trials  1029,  1066;  Bo;}d  vs.  United  States,  116 
U.  S.  627. 


221 

Congress  to  be  unconstitutional,  which  forbade  any 
person  to  practice  law  in  the  Federal  courts,  unless  he 
should  first  take  an  oath  that  he  had  taken  no  part  in 
support  of  the  southern  confederacy  in  the  Civil  War. 
The  ground  of  .the  decision  was  that,  although  the  act 
did  not  say  in  express  terms  that  its  purpose  was  to 
inflict  punishment  on  attorneys  who  had  aided  the  con- 
federacy, yet  that  such  was  in  fact  its  purpose,  and  that 
it  was  therefore  a  criminal  law  and  ex  post  facto.  The 
Court  said  (at  pp.  379-80): 

"  The  question  in  this  case  is,  not  as  to  the 
power  of  Congress  to  prescribe  qualifications,  but 
whether  that  power  has  been  exercised  as  a  means 
for  the  infliction  of  punishment,  against  the  pro- 
hibition of  the  Constitution." 

Another  decision  by  the  same  Court,  and  based  upon 
the  same  principle,  was  Wong  Wing  vs.  United  States 
163  U.  S.  (decided  in  1896).  There  the  Court  ruled 
that  a  certain  act  of  Congress,  although  it  did  not 
openly  purport  to  be  a  criminal  act,  yet  was  in  fact 
such,  and  unconstitutional,  it  provided  for  a  convic- 
tion without  a  trial  by  jury.  The  act,  in  providing 
for  the  exclusion  of  Chinese  aliens,  declared  that  an^^ 
of  them  who  should  come  into  the  countr}'  unlawfully 
should  be  arrested,  and,  after  a  trial  by  any  Justice, 
Judge  or  Commissioner  of  the  United  States,  should,  if 
found  guilty  of  having  come  into  the  country  in  viola- 
tion of  the  act,  be  imprisoned  at  hard  labor  for  a  period 
not  to  exceed  one  year  and  then  deported  to  China. 
The  Supreme  Court  said  : 

"  The  question  now  presented  is  whether  Con- 
gress can  promote  its  policy  in  respect  to  Chinese 
persons  by  adding  to  its  provisions  for  exclusion 


222 

and  expulsion,  punishment  by  imprisonment  at 
hard  labor  to  be  inflicted  by  the  judgment  of  any 
Justice,  Judge  or  Commissioner  of  the  United 
States,  without  a  trial  by  jury. 

♦  ♦  u  g^|-  ^Q  declare  an  unlawful  residence  within 
the  country  to  be  an  infamous  crime,  punished  by 
deprivation  of  liberty  and  property,  would  be  to 
pass  out  of  the  sphere  of  constitutional  legislation, 
unless  provision  were  made  that  the  fact  of  guilt 
should  be  first  established  by  a  judicial  trial.  It 
is  not  consistent  with  the  theory  of  our  govern- 
ment that  the  legislature  should,  after  having 
defined  an  offense  as  an  infamous  crime,  find  the 
fact  of  guilt  and  adjudge  the  punishment  by  one 
of  its  own  agents." 

Many  decisions  have  been  made  upon  the  same  prin- 
ciple, decisions  to  the  effect  that  where  a  court  has  no 
jurisdiction  to  try  any  criminal  case,  any  judgment  of 
such  court  is  void  if  it  is  in  fact  a  conviction  of  a  crime, 
even  though  not  openly  stated  to  be  such.  Three  such 
divisions,  in  each  of  which  the  principle  was  applied 
with  remarkable  clearness,  are  given  in  the  foot  note.* 
In  State  vs.  Lazvrence  45  Mo.  492,  in  holding  that  the 
judgment  was  a  conviction  for  crime,  and  therefore  not 
within  the  jurisdiction  of  the  court  making  it,  the  Court 
said  : 

^'  It  is  evident  from  a  collation  of  these  several 
provisions,  that  the  Legislature  treated  a  forfeiture 
of  office,  and  a  disqualification  to  hold  office  and 
vote,  as  elements  and  portions  of  the  "  punish- 
ment "  to  be  visited  upon  the  convicted  offender. 
He  is  deprived  of  office  and  disqualified,  as  in  pun- 
ishment for  his  official  misconduct.  Punishment, 
in  the  legal  sense,  is  some    pain    or    penalty  war- 


*  state  vs.  Ryan,  70  Wis.  676;  State  vs.  l^est  42  Minn.   147;  State  vs.  Lazvrence,  45  Mo. 
492. 


223 

ranted  by  law,  inflicted  on  a  person  for  the  commis- 
sion of  a  crime  or  misdemeanor,  whether  declared 
by  the  court,  or  superinduced  as  a  legal  result  of 
conviction.  An  offender  may  be  punished  as  well 
by  forfeiture  and  disqualification  as  by  fine  and 
imprisonment." 

And  in  State  vs.  West  42  Minn,  the  Court,  after  rea- 
soning to  the  same  effect,  said  : 

''  As  now  constituted  that  court  has  no  jurisdic- 
tion to  try  any  criminal  case  '^"  *  and  its  judgment 
therein  was  therefore  absolutely  void.'' 

The  principles  enforced  in  those  decisions  plainly 
should  overthrow  this  judgment  of  disbarment.  It  is 
plainly  the  invention  of  a  crime,  the  denial  not  only 
of  a  trial  by  jury  but  of  any  trial  whatever,  a  convic- 
tion for  crime,  and  the  infliction  of  a  cruel  and  unusual 
punishment.  This  is  not  only  true  in  fact,  it  is  openly 
avowed.  It  has  been  done  at  the  command  and  for  the 
benefit  of  The  Southern  Pacific  Company.  It  is  a  clear 
usurpation,  a  clear  tyranny.  By  virtue  of  express  pro- 
visions of  the  Constitution  of  the  State,  the  Supreme 
Court  of  California  is  utterly  destitute  of  any  jurisdic- 
tion to  try  any  criminal  case  whatever,  or  to  sentence 
or  impose  punishment  for  crime.'^' 


The  Setting^  Up  of  a  Court  of  Star   Chamber    by  the  Great 
Predatory  Corporations. 

The  guaranty  placed  by  the  American  people  in  the 
14th    Amendment    of  the  Constitution   of  the   United 


*  Constitution  of  Cal.,  Art.  6. 


224 

States,  that  no  State  shall  deprive  any  person  of  life, 
liberty  or  property  without  due  process  of  law,  was 
taken  from  Magna  Charta,  the  great  charter  wrested 
from  an  English  king  in  12 15.  Sir  Edward  Coke,  in 
his  Institutes,  published  in  1629,  states  the  guaranty 
thus  : 

''  No  man  shall  be  disseized,  that  is,  put  out  of 
season,  or  dispossessed  of  his  freehold  (that  is) 
lands,  or  livelihood,  or  of  his  liberties,  or  free  cus- 
toms, that  is,  of  such  franchises  and  freedoms  or 
free  customs  as  belong  to  him  by  his  free  birth- 
right, unless  it  be  by  the  lawful  judgment,  that  is. 
verdict  of  his  equals  (that  is,  of  men  of  his  own 
condition)  or  by  the  law  of  the  land  (that  is,  to 
speak  it  once  for  all)  by  the  due  course  and  process 
of  law." 

And  he  then  says  (at  p.  50)  : 

"  Against  this  ancient  and  fundamental  law,  and 
in  the  face  thereof,  I  find  an  Act  of  Parliament 
made,  that  as  well  justices  of  assize,  as  justices  of 
peace  (without  any  finding  or  presentment  by  the 
verdict  of  twelve  men)  upon  a  bare  information  for 
the  king  before  them  made,  should  have  full  power 
and  authority  by  their  discretions  to  hear  and 
determine  all  offenses  and  contempts  committed  or 
done  by  any  person  or  persons  against  the  form, 
ordinance  and  effect  of  any  statute  made  and  not 
repealed,  etc.  By  color  of  which  Act,  shaking 
this  fundamental  law,  it  is  not  credible  what  hor- 
rible oppressions,  and  exactions,  to  the  undoing 
of  infinite  numbers  of  people,  were  committed  by 
Sir  Richard  Empson,  Knight,  and  Edmund  Dud- 
ley, Justices  of  Peace,  throughout  England.   *  * 

"  But  at  the  Parliament  holden  in  the  first  year 
of  Henry  viii,  this  Act  of  11  Henry  vii  is  re- 
cited and  made  void  and  repealed^  and  the  reason 


225 

thereof  is  yielded,  for  that,  by  force  of  the  said  Act 
it  was  manifestly  known  that  many  sinister  and 
crafty,  feigned  and  forged  informations  had  been 
pursued  against  divers  of  the  king's  subjects,  to 
their  great  damage  and  wrongful  vexation ;  and 
the  ill  success  thereof  and  the  fearful  ends  of  these 
two  oppressors  should  deter  others  from  commit- 
ting the  like,  and  should  admonish  Parliaments, 
that,  instead  of  this  ordinary  and  precious  trial  by 
the  law  of  the  land,  they  being  not  in  absolute  and 
partial  trials  by  discretion." 

Gneist,  in  his  History  of  the  Enq-lisk  Constitution^ 
in  the  chapter  upon  the  struggle  against  the  arbitrary 
and  corrupt  courts  of  the  Stuarts,  says  (Vol.  2,  pp.  183, 
185)  of  the  Star  Chamber  : 

'*  The  proceedings  in  the  Star  Chamber  were 
never  regulated  by  law.  '^  *  A  court,  consisting 
entirely  of  offiicials  '^'  *'^  without  a  jury  *  '^' 

"  Thus  arises  a  State  court  of  justice  from  which 
there  is  no  appeal,  with  a  somewhat  indefinite 
penal  jurisdiction.  *  *  Comprising  in  one  body  a 
ministerial  council  and  a  State  court  of  justice,  the 
Star  Chamber  could  wield  an  irresistible  power 
over  persons  and  property,  by  which  it  systematic- 
ally trampled  down  all  resisting  independence,  and 
finally  also  every  right." 

Empson  and  Dudley,  atrocious  as  was  their  conduct, 
did  not,  however,  proceed  in  it  until  an  act  of  parlia- 
ment had  first  been  made  authorizing  them  so  to  do. 
So,  too,  the  Star  Chamber  was  established  as  such  by 
an  act  of  parliament,  an  act  which  in  its  preamble  de- 
clared that  the  purpose  of  creating  such  a  court  was 
to  secure  the  certain  and  speedy  punishment  of  all  per-' 
sons  who^  in  the  opinion  of  the  court^  deserved  pun- 
ishment. 


226 

How  much  more  bold  is  tyranny  and  oppression  in 
the  United  States  !  Our  tyrants  and  oppressors  do  not 
so  stoop  as  to  procure  first  an  act  of  the  legislature. 
They  seize  and  use  the  courts  with  direct  usurpation, 
themselves  writing  the  dicisions  of  the  courts,  making 
those  decisions  to  be  themselves  the  law  by  which  they 
are  to  be  supported,  and  demanding  that  all  those  who 
represent  people  in  the  courts,  "  shall,  as  officers  of  the 
Court,  maintain  its  dignity,  and  set  the  example  of  re- 
spect for  it  which  is  demanded  of  all."  (See  the 
Appendix  p.  14.) 

The  disbarment  has  been  inflicted  as  a  "  punish- 
ment," a  "  penalty  "  for  an  ''  offense,"  and  this  is  openly 
avowed  in  the  very  language  in  which  it  is  expressed. 
The  "  punishment,"  the  "  penalty  "  inflicted  is  the  for- 
feiture of  the  victim's  means  of  livelihood,  the  blasting 
of  all  the  fruits  of  his  many  years  of  toil  and  study 
and  cultivation,  and  the  publication  of  the  victim,  in 
the  name  of  the  State,  in  defamation  and  calumny 
throughout  the  nation  and  for  all  future  time,  blasting 
him  in  his  good  name  throughout  the  nation  and  for- 
ever. To  give  it  the  greatest  possible  effect,  it  is  done 
in  the  name  of  the  State.  See  the  language  of  Story, 
quoted  on  p.  200  above,  of  the  tyrannies  practiced  in  the 
times  of  the  Stuarts,  "  against  persons  odious  to  the 
Court  and  its  favorites  *  *  cruel  and  vindictive  punish- 
ments inflicted." 

It  is  said  by  Sir  Edward  Coke  (2  Inst.  48)  : 


"  Every  oppression  against  law,  by  color  of  any 
usurped  authority,  is  a  kind  of  destruction,  for  it 
is  the  means  by  which  destruction  is  wrought. 
And  it  is  the  worst  oppression  that  is  done  by  color 
of  justice." 


227 

And  by  Charles  Sumner : 

"  Power  divorced  from  right  is  devilish  ;  power 
without  the  check  of  responsibility  is  tyrannical  ; 
and  I  need  not  go  back  to  the  authority  of  Plato, 
when  I  assert  that  the  most  complete  injustice  is 
that  erected  into  the  form  of  law." 

The  only  trial  allowed  is  an  infamous  mockery,  and 
solely  by  those  making  the  accusation  and  claiming 
to  be  the  persons  immediately  aggrieved. 

The  "offense,"  the  crime  invented,  is  that  of  properly 
presenting  a  case  to  a  court  of  justice,  the  seeking  of 
justice  in  a  court  of  justice.  And  it  is  made  a  Star 
Chamber  crime,  that  is,  a  crime  where  the  accused  can 
have  no  protection  of  trial  by  jury,  but  where  his  accus- 
ers, though  they  are  but  unspeakable  rascals,  sit  as 
judges  and  jury  on  the  trial  of  their  own  accusation, 
and  where  their  victim  has  no  appeal.  This  was  the 
essential  feature  of  the  infamous  court  of  Star  Chamber, 
of  world-wide  notoriety,  which  in  England  became  one 
of  the  worst  instruments  in  overthrowing  the  liberties  of 
the  people,  and  was  one  of  the  chief  causes  that  led  to 
the  execution  of  Charles  the  First  by  his  outraged  sub- 
jects. 

As  said  by  Lord  Mansfield,  in  a  passage  above 
quoted ;  the  deliberate  decision  of  a  case  by  a  higher 
court  '*  establishes  the  law,  and  makes  a  precedent  for 
future  cases.  *  *   This  will  be  a  precedent." 

A   great    American  judge  (Hon.  Henry  Clay  Cald-' 
well)  has  lately  said  : 

"  Reduced  to  its  last  analysis,  the  intelligent  and 
impartial  administration  of  justice  is  all  there  is  of 
free  government.  It  is  the  public  justice  that 
holds  the  community  together.     It  is  to  the  courts 


I 
I 


228 


that  all  must  look  for  the  protection  of  their  lib- 
erty, person,  property  and  reputation." 

Consider  now  what  has  been  done  in  the  case  here. 
It  is  not  alone  the  destruction  of  the  attorney  and  the 
unspeakable  outrage  to  the  three  defenseless  women,  an 
aged  widow  and  her  daughters,  his  clients.  The  delib- 
erate infliction  of  it,  the  persistence  in  it,  the  publication 
of  the  decision  in  the  Reports,  has  fixed  it  as  a  prece- 
dent, an  authority  to  be  followed  in  the  future,  a  foun- 
dation prepared  for  future  and  fi»r  reaching  outrages  and 
oppressions,  "  to  the  undoing  of  infinite  numbers  of 
people." 

The  invention  of  such  a  crime,  the  prescribing  for  it 
a  punishment  so  terrible,  the  turning  of  the  Supreme 
Court  of  a  State,  by  usurpation,  into  such  court  of  Star 
Chamber,  to  be  held  by  the  wicked  agents  of  such 
organizations  as  The  Southern  Pacific  Company,  has 
established  an  arbitrary  power  over  those  who  repre- 
sent persons  that  are  parties  to  or  are  interested  in 
cases  in  the  courts.  ''An  advocate  personates  his  client ; 
he  has  taken  upon  him  the  whole  charge  of  his  inter- 
ests;  he  stands  in  his  place."  "The  rights  of  an  attor- 
ney, in  his  capacity  as  such,  are  the  rights  of  the  people, 
involving  their  lives,  liberty  and  property."  To  terror- 
ize into  silence  the  representatives  of  one  party  to  a 
suit,  or  drive  him  into  making  a  feeble  argument  or 
into  pretending  that  his  client  has  no  case,  is  to  use  the 
Court,  and  with  it  the  whole  power  of  the  people,  as  a 
gigantic  engine  for  robbery  and  oppression  and  for  all 
manner  and  any  degree  of  wrong  and  outrage.  And, 
such  is  the  very  purpose  for  which,  in  the  case  which  is 
here  being  exhibited,  the  outrage  here  shown  has  been 
committed.     In   the  atrocity  of  the  crime  committed, 


229 

and  in  what,  if  it  is  allowed  to  triumph,  is  to  be  the  far 
and  wide  reach  of  its  evil  effects,  the  case  equals,  if  it 
does  not  exceed,  anything  done  by  Empson  and  Dudley. 

And  the  same  is  true  of  the  disposition  of  each  of  the 
three  appeals  of  Mrs.  Levinson  and  her  daughters, — the 
denial  of  the  right  to  an  attorney,  the  denial  of  the  right 
to  have  an  advocate,  the  denial  of  the  fundamental 
right  of  a  hearing,  the  denial  of  an  impartial  tribunal, 
and  the  corrupt  and  false  decisions  based  upon  and  reek- 
ing from  end  to  end  with  lies  and  trickery  and  malice 
and  wickedness.  All  these  things  have  not  only  been 
committed  upon  the  three  defenseless  women,  a  dead 
man's  surviving  and  defenseless  family;  they  have 
been  made  precedents  and  authorities  to  be  followed 
in  like  practices  against  others. 

Empson  and  Dudley  acted  as  judges,  but  they  were 
in  fact  the  agents  of  the  avaricious  monarch,  Henry  the 
Seventh,  in  wresting  for  him  inheritances  and  property 
from  various  people  under  color  of  forfeitures  for  non- 
compliance with  some  requirement  of  law — ^^  to  the 
undoing  of  infinite  numbers  of  people."  And  it  was  for 
such  crimes  that  they  were  taken  to  Tower  Hill  and 
there  publicly  hanged  and  quartered,  with  the  tortures 
characteristic  of  that  age  and  of  that  mode  of  punish- 
ment. And  the  ill  success  of  their  practices  "  and  the 
fearful  ends  of  these  two  oppressors,"  and  of  others  who 
from  time  to  time  were  the  willing  agents  of  oppression 
and  tyranny,  did  in  England  "  deter  others  from  com- 
mitting the  like,"  and  were  the  lessons  to  tyrants  and 
oppressors  by  means  of  which  the  English  people  have 
acquired  the  measure  of  liberty  and  justice  and  domes- 
tic safety  which  they  now  enjoy. 

In  the  United  States,  instead  of  titled  monarchs  like 


230 

the  Tudors  and  the  Stuarts,  we  have  cunning,  merciless 
predatory  plutocrats,  whose  enormous  wealth  has  been 
acquired  by  fraudulent  and  sharp  practices  in  a  coun- 
try abounding  in  natural  wealth,  and  who  now  by  the 
machinery  of  wealthy  and  powerful  organizations  of 
corporations,  by  the  monopolies  which  they  hold,  by 
standing^  between  multitudes  of  people  and  their  means 
of  livelihood,  by  dictating  the  nominees  of  party  con- 
ventions and  the  appointments  to  office,  and  by  con- 
trolling the  press,  are  engaged  in  absorbing  the  wealth 
and  corrupting  and  enslaving  the  people.  Their  Emp- 
sons  and  Dudleys  are  such  Judges  of  the  higher  courts 
of  whom  examples  may  be  seen  in  those  who  as  Jus- 
tices of  the  Supreme  Court  of  California  have  commit- 
ted and  are  keeping  up  the  crimes  here  exposed.  It  is 
such  agents  of  oppression  and  tyranny  who  in  the 
United  States  are  ever  making  the  predatory  rich  more 
wealthy,  and,  to  aggrandize  and  consolidate  their  pow- 
ers, ever  reducing  good  and  deserving  people  to  the 
condition  where  they  are  poor  and  needy  and  helpless 
— "to  the  undoing  of  infinite  numbers  of  people."  Such 
an  organization  of  corporations  is  The  Southern  Pacific 
Company.  And  in  these  pages  there  is  shown  an  ex- 
ample of  their  work. 

i5.     The  Disbarment  Unlawful  Because  Not  "Permanently 
or  For  a  Limited  Period.'* 

The  judgment  of  disbarment  is  in  its  own  terms  ex- 
pressly declared  to  be: 

*  *  "for  the  period  of  three  (3)  years  from  this  date  and 
thereafter  until  the  further  order  of  this  Court  removing  such 
suspension."* 


*See  the  Appendix  p.  29. 


251 

But  the  statute  authorizing  the  disbarment  of  attor- 
neys expressly  declares  that  the  only  disbarment  al- 
lowable is  a  disbarment  "permanently  or  for  a  limited 
period."      (Code  Civil  Procedure,  Sees.  iS]  299). 

And  the  same  statute  declares  that  every  judgment 
must  be  "the  final  determination  of  the  rights  of  the 
parties  in  an  action  or  proceeding."  (Id.  Sees.  18;  577). 

And  the  Constitution  of  the  State  expressly  makes 
these  provisions  binding  on  the  Courts,  and  "manda- 
tory and  prohibatory."  (Art.  i,  Sec.  22,  Art.  xxii, 
Sees.  I,  11). 

And  the  Supreme  Court  of  California  has  expressly 
ruled  that  any  judgment  which  is  not  such  a  "final 
determination"  is  unauthorized  and  unlawful.'^' 


16.     The  Pledge  Laid  Upon  the    Court    to  Decide    the   Pro- 
bate Appeal  Against  firs.  Levinson  and  Her  Daughters. 

Take  now   the  new  accusations  set  out  in  the    dis- 
barment judgment  in  the  following  passages  : 

'*  It  [the  brief]  also  contains  language  highly  reprehensi- 
ble *  *  and  his  answer  contains  such  language  concerning 
another  learned  judge  of  the  Superior  Court  who  decided 
the  other  cases  mentioned  in  said  Philbroqk's  answer."! 

'  *  As  respondent  has  in  the  same  connection  assailed  not 
only  *  *  the  two  Superior  Judges  above  referred  to,  but 
also  certain  reputable  lawyers  who  were  at  one  time  associ- 
ated with  him  in  the  litigation,  and  a  special  administrator 
who  was  appointed  at  his  own  instance  and  out  of  his  own 
office,  charity  might  possibly  suggest  that  he  is  the  victim 
of  abnormal  suspicion  and  distrust.]: 

This   language   was  used  concerning  the  appeal  of 


^People  vs.  Gold  Run  D.  &  M.  Co.,  66  Cal,   156.    SUckton  df  C.    JVorks  vs.  Ins.  Co.,  98 
Cal.,577- 

tSee  the  Appendix,  p.  23. 
:tSee  the  Appendix,  p.  26. 


232 

Mrs.  Fanny  Levinson  and  her  two  daughters  from  the 
decree  of  the  Probate  Court  settling  the  account  of  the 
embezzling  and  suspended  administrator — the  case 
stated  on  pages  55-59  above.  When  the  disbarment 
was  made  that  case  was  pending  in  the  Supreme  Court, 
but  had  not  been  given  a  hearing.  In  the  passages  of 
the  disbarment  judgment  just  quoted,  the  attorney  who 
was  carrying  on  that  case  for  Mrs.  Levinson  and  her 
daughters  is  condemned  for  presenting  a  complaint  of 
the  wrongs  against  which  they  were  seeking  justice, 
and  the  Justices  are  made  to  take  sides  in  advance  with 
the  persons  complained  of.  By  the  disbarment  the 
three  defenseless  women  were  deprived  of  an  attorney 
in  that  case  also,  a  pledge  laid  upon  the  Court  to  decide 
the  case  against  them,  and  a  threat  of  disbarment  issued 
against  any  attorney  who  should  attempt  to  urge  for 
them  the  grounds  upon  which  they  were  seeking 
justice. 

And  afterwards  the  authors  of  the  disbarment,  after 
depriving  those  three  defenseless  women  of  the  right 
to  an  attorney,  and  after  denying  them  a  hearing  of 
their  case,  decided  it  against  them,. in  accordance  with 
the  pledge  which,  in  the  disbarment  judgment,  the;y 
had  so  wickedly  laid  upon  the  Court.  That  decision  of 
the  appeal  from  the  Probate  Court  was  made  August 
6,  1895,  and  the  petition  of  Mrs.  Levinson  protesting 
against  it  and  asking  for  a  hearing  was  denied  without 
assigning  a  reason,  and  struck  from  the  files.  That 
decision  appears  in  the  Reports  as  Estate  of  Levinson^ 
108  Cal.  450. 


233 

1 7,     The  Pledge  Laid  Upon  the  Court  to  Decide  the  Account- 
ing Suit  in  Favor  of  the  two  Newmans. 

Throughout  the  judgment  of  disbarment,  the  most 
emphatic  pledges  are  expressly  and  over  and  over  again 
laid  upon  the  Court — the  most  express  and  em- 
phatic pledges  taken  in  advance — to  decide  the  case 
in  which  the  brief  was  filed,  in  favor  of  the  respondents, 
the  two  Newmans.  To  quote  the  passages  in  which 
such  pledges  most  particularly  appear,  would  be  to 
quote  almost  the  entire  judgment  of  disbarment,  not 
only  the  part  signed  by  five  Justices,  but  also  that 
written  specially  by  William  H.  Beatty,  the  Chief  Jus- 
tice. Instead  of  quoting  the  passages  at  length,  I  there- 
fore refer  to  the  pages  of  the  Appendix  in  which  they 
appear. 

The  passages  in  the  part  of  the  disbarment  judgment 
signed  by  five  Justices,  in  which  such  pledges  most 
particularly  appear,  occupy  almost  all  of  pages  23,  24-, 
25,  26,  and  27  of  the  Appendix. 

In  the  part  written  specially  by  Wm.  H.  Beatty,  the 
Chief  Justice,  the  pledge  first  appears  at  the  very  begin- 
ning in  the  words,  "  Mr.  Philbrook's  assault  upon  a 
member  of  this  Court — gross  and  unjustifiable  as  I 
deemed  it  to  be — "  (See  the  Appendix,  p.  29).  And 
it  is  all  that  part  of  his  concurring  opinion  which  he 
calls  *' the  other  branch  of  the  case''  (Id.  p.  32),  and 
which  constitutes  all  that  part  of  his  concurring  opin- 
ion shown  on  pages  33-34  of  the  Appendix. 

The  passages  which  are  here  particularly  referred  to 
constitute  almost  the  entire  bulk  of  the  disbarment 
judgment.  That  the  declarations  there  made  are  an 
express  taking  of  sides  upon  the  grounds  of  the  case  in 
which  the  brief  was   filed — a  taking  of  sides  with  the 


234 

two  Newmans  and  before  the  case  was  heard— may  be 
seen  by  comparing  the  language  with  the  facts  of  the 
case  as  stated  on  pages  16-54  and  86-106  above,  and 
with  the  grounds  of  the  case  as  stated  on  pages  79-97 
above.  It  may  also  be  seen — where  it  is  openly  con- 
fessed by  the  authors  of  the  disbarment — in  the  final 
decision  of  the  case  afterwards  made  by  them  in  favor 
of  the  two  Newmans.  See  particularly  the  language 
used  in  that  final  decision,  and  shown  on  pages  54,  61, 
62,  63,  64,  65,  66,  6'],  71-72,  73-75  of  the  Appendix. 

The  passages  particularly  referred  to  are,  however, 
but  examples  of  the  plainly  evident  spirit  and  meaning 
of  the  entire  judgment  of  disbarment.  It  was  an  ex- 
press taking  of  sides  upon  the  case  in  which  the  brief 
was  filed,  and  in  advance  of  a  hearing  of  the  case.  It 
was  a  mass  of  vindictive  and  most  effective  pledges  laid 
upon  the  Court  to  decide  the  case  in  favor  of  the  two 
Newmans,  and  not  only  for  the  purpose  of  shielding 
the  Associate  Justice  Ralph.  C.  Harrison  and  uphold- 
ing him  in  his  villainy,  but  also  for  the  purpose  of  jus- 
tifying the  other  Justices  in  the  declarations  concerning 
the  case  which  were  thus  laid  down  by  them  in  the 
judgment  of  disbarment.  Thereafter,  and  by  reason  of 
the  judgment  of  disbarment,  those  of  the  Justices  who 
took  part  in  it,  and  the  two  (Frederick  W.  Henshaw  and 
Jackson  Temple),  who  immediately  afterward  (January 
7,  1895)  took  office  as  Justices  and  joined  with  the 
others  in  upholding  the  disbarment,  most  effectively 
made  the  case  of  the  two  Newmans  their  own,  so  that 
when  they  afterwards  acted  in  the  case,  they  acted  as 
judges  of  their  own  case.  That  the  judgment  of  dis- 
barment could  not  possibly  fail  to  have  such  effect,  and 
that  by  means  of  it,  all  the  Justices  of  the  Court  were 


235 

• 
corruptly    and   wickedly    disqualified    from    acting    as 
Judges  of  the  case  in  which  the  brief  was  filed,  is  mani- 
festly true  and  is  emphatically  sustained  by  the  author- 
ities.* 

In  Meyers  vs.  Shields^  6i  Fed.   the  Court  said  (at  p. 

725)- 

^'The  object  of  all  legislation  pertaining  to  judi- 
cial or  quasi-judicial  proceedings  is  to  furnish  an 
impartial  and  wholly  disinterested  tribunal,  before 
which  such  proceedings  are  instituted  and  carried 
forward.  It  is  to  carry  out  the  constitutional 
guaranty  that  no  man  shall  be  deprived  of  life, 
'  liberty  or  property  without  due  process  of  law,  that 
the  chief  safeguard  of  a  disinterested  judge,  jury, 
referee,  or  arbitrator  is  so  carefully  provided  by 
legislation  and  protected  by  judicial  scrutiny.  The 
most  notorious  criminal  enjoys  these  safeguards  to 
the  extent  that  the  magistrate  who  presides  at  his 
preliminary  hearing  must  be  disinterested.  Every 
grand  juror  who  sits  in  the  grand  inquest  as  to 
his  crimes  must  be  disinterested;  every  petit  juror 
who  tries  the  facts  after  the  grand  jury  presents 
its  indictment  must  be  disinterested;  the  judge 
who  presides  at  the  trial, — each  and  all  must  be 
wholly  impartial  and  disinterested  in  the  result. 
Even  after  conviction,  if  it  is  made  to  appear  that 
by  some  mistake  an  interested  or  disqualified  juror 
has  participated  in  the  trial  and  verdict  reached, 
such  interest  and  bias  on  the  juror's  part  contami- 
nates the  whole  proceeding,  poisons  the  fountains 
of  justice  at  their  source,  and  makes  the  verdict 
null  and  void.  Even  in  a  civil  suit,  our  system  of 
judicial  proceedings  assures  to  each  party  a  fair 
and  disinterested  judge  and  jury  to  pass  upon  the 
law  and  facts  in  controversy  between  them.'' 


*  C.  C.  p.  of  Cal.,  %  170;  Constitution  of  Cal.,  Art.  XXII,  Sees,  i,  it.  Civil  Code  of  Cal 
;28;  iVash.  Ins.  Co.  v.  Price,  2  Hopk.  Ch.  2;  Ry.  Co.  v.  Howard,  20  Mich.  25;  Stockwellv 
,  Board  of  White  Lake,  22  Mich.  350. 


236 

And  it  is  to  be  noticed  that  all  tliis  feature  of  the 
judgment  of  disbarment,  the  laying  of  pledges  upon 
the  Court  to  decide  the  accounting  suit  in  favor  of  the 
two  Newmans — that  all  this  was,  in  advance  of  the 
disbarment,  and  even  before  the  mock  hearing  of  the 
citation,  demanded  and  published  by  The  Southern 
Pacific  Company  in  editorials  in  The  Record-Union, 
See  the  editorial  published  on  December  the  T3th  (Ap- 
pendix pp.  10-15)  and  that  published  on  December  the 
20th  (Id.  pp.  16-21). 


18.  The  False  and  Dishonest  Treatment  of  the  Facts. 
The  Pitiable  Farrago  Put  Forward  to  Whitewash  the 
Associate  Justice  Ralph  C.  Harrison. 

Consider  now  how  self-evidently  false  and  dishonest 
is  the  treatment  of  the  facts,  and  what  a  pitiable  farrago 
of  self-evident  falsehoods  it  is,  with  which  it  is  sought 
in  the  judgment  of  disbarment  to  whitewash  the  Asso- 
ciate Justice  Ralph  C.  Harrison. 

It  is  in  the  part  signed  by  five  Justices  that  the  work 
is  done  with  far  the  more  cunning,  with  a  cautious  hid- 
ing behind  generalities  and  avoiding  any  detailed 
statement  of  the  facts.  The  conclusion  asserted  is  that 
stated  in  the  following  words  (see  pp.  158-159  above)  : 

*  *  "he  has  been  unable  to  show  any  ground,  any 
decent  pretext,  for  the  outrageous  verbal  assaults  which  he 
has  made  upon  a  member  of  this  Court.  Nothing  appears  in 
connection  with  the  transaction  so  often  alluded  to  in. the 
brief  which  places  Justice  Harrison  in  any  other  light  than 
that  of  an  honorable  lawyer,  faithfully  attending  to  the  in- 
terests of  his  client,  and  advising  him  according  to  his  best 
judgment." 


237 

Now  see  with  what  a  miserable  farrago  that  conclu- 
sion is  supported. 

At   one  point   the  nomination  of  Mr.   Harrison  for 

Associate  Justice  of  the  Supreme  Court  is  represented 

as  being  the  only  fact  charged  as  implicating  him.  This 

occurs  in  the  following  passage   (see    the   Appendix  p. 

24): 

'*  But  it  happened  that  a  few  weeks  before  the  said  6th 
of  September,  Justice  Harrison  had  been  nominated  ;  ^  * 
and  upon  this  circumstance  respondent  Philbrook  has  built 
up  in  his  imagination  a  gigantic  conspiracy,"  etc. 

A  little  further  on  a  long  farrago,  a  small  part  of 
which  is  true,  and  the  rest  not  only  false  but  design- 
edly false,  is  alleged  against  the  brief,  and  the  whole 
confused  medley  is  then  called  ^'  this  imaginary  state 
of  facts  founded  on  no  evidence."  The  passage  here 
referred  to  is  that  occupying  the  foot  of  p.  24  and  the 
top  of  p.  25  of  the  Appendix.  Of  the  charges  against 
the  brief  included  in  that  farrago,  and  called  "  this 
imaginary  state  of  facts  founded  on  no  evidence,"  one 
is  that  the  brief  states  the  fact  of  Mr.  Harrison's  nom- 
ination as  candidate  for  Associate  Justice  of  the 
Supreme  Court ;  another,  that  he  drew  up  and  wit- 
nessed the  papers  of  the  secret  sale.  Are  those  facts 
"  imaginary  "?  Other  charges  in  that  particular  far- 
rago are  that  the  brief  argued  that  Mr.  Harrison  "  was 
practically  sure  of  election,"  that  *'  any  Superior  Judge 
*  ^''  would  be  deterred  from  doing  right,"  and  that  ''  the 
other  Justices  of  this  Court  would  be  swerved  from  their 
duty."  All  those  charges  are  false  and  designedly 
false.  It  was  no  part  of  the  argument  that  he  "  was 
practically  sure  of  election  "  or  that  "  any  Superior 
Judge  would  be  deferred  from  doing  right  "  or  that 
''  the   other   Justices  of  this  Court  would   be  swerved 


238 

from  their  duty  '';  all  this  may  be  seen  in  the  com- 
parison of  the  case  with  that  of  Egerton  vs.  Earl 
Brownloiv  which  was  given  in  the  brief,  and  is  shown 
on  pages  79-96  above.  In  that  case  neither  the  boy, 
Lord  Alford,  nor  his  heir  was  "  practically  sure  "  to 
grow  to  manhood  and  succeed  to  the  estate  left  by  the 
will,  nor  would  the  English  sovereign  '^  be  deterred 
from  doing  right,''  nor  would  he  and  his  ministers  be 
*^  swerved  from  their  duty."  It  was  enough  that  the 
contingency  that  Lord  Alford  might  grow  to  manhood 
and  come  into  that  property,  or  that  he  might  have  an 
heir  w^ho  would  do  so,  was  foreseen  and  provided  for, 
and  that  if  he  should  do  so,  or  if  his  heir  should  do  so, 
and  should  request  to  be  made  duke  or  marquis  of 
Bridgewater,  the  fact  of  his  official  and  social  connec- 
tion (or  that  of  his  heir,  as  the  case  might  be)  with  the 
sovereign  and  his  ministers  and  the  probable  loss  of  the 
estate  that  would  ensue  to  him  (or  to  his  heir)  if  he 
should  be  refused,  would  be  an  "  embarrassment,"  a 
"  pressure  "  tending  to  influence  the  sovereign  and  his 
ministers  improperly  to  grant  the  desired  dignity.  As 
in  the  case  here,  the  argument  of  the  brief  was  that  in 
contriving  the  secret  sale  and  secretly  putting  the 
papers  in  the  handwriting  of  the  candidate  Ralph  C. 
Harrison,  and  having  then  signed  by  him  as  the  sole 
witness,  the  contingency  that  he  was  likely  to  become 
within  a  few  months  one  of  the  Associate  Justices  of 
the  Supreme  Court  of  the  State,  was  foreseen  and  pro- 
vided for  ;  and  that,  if  the  contingency  should  happen, 
then  the  fact  of  his  official  and  social  connection  with 
the  other  Justices  and  in  the  government  of  the  State, 
and  the  injury  that  w^ould  ensue  to  him  if  his  trans- 
action   should    be    adjudged  fraudulent,  would  be    an 


239 

*' embarrassmeut,"  a  ^' pressure ''  tending  naturally  to 
influence  the  Courts  improperly  to  uphold  the  transac- 
tion. And  the  secrecy  of  the  transaction  and  all  the 
peculiar  circumstances  stated  above  were  pointed  out 
as  proving  that  it  was  in  fact  contrived  for  that  very 
purpose.  The  secrecy  of  the  transaction  showed  the 
sense  of  guilt.  The  holding  it  in  reserve  until  the 
efforts  to  subdue  the  deceased  partner's  family  by 
depriving  them  of  money  had  failed,  also  showed  the 
sense  of  guilt. 

To  show  that  such  was  the  corrupt  and  wicked  pur- 
pose of  the  contrivance,  the  brief  also  pointed  to  the 
contention  which  the  Newmans'  attorneys,  Justice  Har- 
rison's confederates,  had  made  in  the  Superior  Court, 
that  the  transaction  could  be  set  aside  only  on  the 
ground  of  fraud  (a  contention  expressly  upheld  by  the 
trial  Judge — See  the  Appendix  pp.  3-4)  and  that  it 
was  Justice  Harrison's  transaction.  The  brief  also 
called  attention  to  the  outcry  of  E.  R.  Taylor,  a  crony 
of  Justice  Harrison  and  one  of  the  Newmans'  attorneys 
that  "  It  is  in  Judge  Harrison's  handwriting  !"  And 
the  brief  also  showed  that  the  Newmans'  attorneys.  Jus- 
tice Harrison's  confederates,  had  already  begun  their 
same  corrupting  tactics  in  the  Supreme  Court. 

The  case  was  clear.  The  proof  was  full.  The  secret 
sale  was  clearly  a  contrivance  to  influence  the  courts 
corruptly,  and  was  from  the  time  when  it  was  con- 
trived and  ever  afterward  unlawful  on  that  ground. 
The  Justices  who  took  part  in  the  disbarment  then  well 
knew,  as  they,  have  ever  since  known,  that  such  was 
the  contrivance,  and  that  the  secret  sale  was  for  that 
reason  unlawful.  It  was  a  case  in  which  justice  plainly 
demanded  the  disbarment  of  the  confederates,  Ralph  C. 


240 

Harrison,  J.  B.  Reinstein,  M.  S.  Eisner  and  E.  R.  Tay- 
lor— a  demand  which  justice  has  ever  since  made  and 
is  still  making  with  ever  increasing  emphasis.  If  the 
Justices  (besides  Harrison)  had  been  honest  men  and 
free  from  the  domination  of  The  Southern  Pacific  Com- 
pany, a  great  decision  like  that  of  the  case  of  Egerton 
vs.  Earl  Brownlow  would  have  been  made  and  the  four 
confederates  last  named  would  have  been  cited  for  dis- 
barment. But  Justice  Harrison  was  the  tool  and  favor- 
ite of  The  Southern  Pacific  Company.  All  the  other 
Justices  were  the  creatures  of  The  Southern  Pacific 
Company.  As  the  editorials  in  The  Evening  Post  and 
The  Record-Union  show.  The  Southern  Pacific  Com- 
pany commanded  that  the  corrupt  transaction  was  to  be 
upheld,  that  Justice  Harrison  and  his  confederates  were 
to  be  upheld,  and  that  the  attorney  who,  on  behalf  of 
the  three  defenseless  women,  his  clients,  had  exposed 
the  villainy,  was  to  be  disbarred  as  a  "punishment"  for  so 
doin^,  and  to  be  held  up  forever  in  the  name  and  by  the 
authority  of  the  State  as  a  criminal,  and  to  be  relieved 
of  the  "  punishment "  only  upon  condition  of  making  a 
public  false  declaration  upholding  the  villainy  which  he 
had  exposed,  and  declaring  the  great  crime  committed 
upon  him  to  be  just  and  proper.  The  Justices  obeyed 
their  owners.  The  Southern  Pacific  Company.  The 
farrago  with  which,  in  the  judgment  of  disbarment, 
they  have  sought  to  obey  the  orders  of  The  Southern 
Pacific  Company  is  but  a  tissue  of  designed  and  self- 
evident  falsehoods. 

Let  it  be  noted  that  the  designed  falsehood  of  the 
judgment  of  disbarment  that  the  brief  argued  that 
"  the  other  Justices  of  this  Court  would  be  swerved 
from   their  duty"  (a  falsehood  just  pointed  out)   was 


241 

also  copied  direct  from  The  Record- Union.  It  appeared 
in  The  Record-Union  editorial  of  Dec.  the  13th  (see 
the  Appendix  p.  10),  and  was  twice  asserted  and  with 
great  emphasis  in  that  published  on  Dec.  the  20th  (Id. 
p.  19). 

The  assertion  in  the  disbarment  judgment  that  there 
was  no  evidence  of  any  wrong  doing  by  Ralph  C.  Har- 
rison was  also  taken  from  The  Record- Union.  (See 
for  instance  p.  20  of  the  Appendix). 

Throughout  the  judgment  of  disbarment,  both  in 
the  part  signed  by  five  Justices,  and  in  that  written 
specially  by  Wm.  H.  Beatty,  the  Chief  Justice,  the 
facts  are  carefully  suppressed  and  kept  out  of  sight. 

The  secrecy  of  the  transaction,  of  the  secret  sale,  is 
carefully  suppressed.  The  pains  that  were  so  long 
taken  to  keep  it  secret,  all  this  is  also  carefully  kept 
out  of  sight. 

The  promise  of  Ralph  C.  Harrison  that  no  step 
should  be  taken  without  notice,  and  his  use  of  that 
promise  as  an  additional  cloak  for  the  secrecy,  are  care- 
fully kept  out  of  sight. 

The  long  and  cunning  effort  to  subdue  Mrs.  Levin- 
son  and  her  daughters  by  withholding  from  them  their 
means  of  living — and  that  such  a  measure  was  adopted 
and  pursued  upon  Ralph  C.  Harrison's  advice — is  all 
carefully  suppressed. 

The  effort  of  Ralph  C.  Harrison  and  the  Newmans 
in  July,  1890,  to  obtain  secretly  from  the  Probate 
Court  an  order  authorizing  such  a  transfer,  and  the 
false  pretense  then  made  by  them  to  the  Court  that 
all  the  assets.,  including  the  good  will  of  the  business^ 
had  been  valued  and  accounted  for,  and  the  refusal 
of  the  Probate  Court  to  make  any  such  order — all  this 
is  carefully  kept  out  of  sight. 


242 

The  fact  that  the  secret  sale  was  made  for  a  sum 
less  by  $593.18  than  the  *'  balance  sheet ''  of  the  New- 
mans showed  to  be  the  value  of  the  interest,  is  care- 
fully suppressed. 

The  declaration  of  the  executor  (see  p.  49  above) 
that  ''  throughout  the  administration  of  the  estate  he 
had  done  just  what  his  attorney  had  told  him  to  do," 
is  carefully  suppressed. 

The  effort  of  Ralph  C.  Harrison  in  December,  1890, 
— after  he  had  became  Justice  elect  of  the  Supreme 
Court  and  fully  three  months  after  the  secret  sale — to 
induce  the  Probate  Court  to  rule  falsely  that  the  good 
will  of  the  business  belonged  to  the  Newmans,  is  care- 
fully kept  out  of  sight. 

Let  it  be  noted  also  that  all  the  suppression  of  the 
facts  of  the  case  thus  practiced  in  the  judgment  of  dis- 
barment was  also  copied  from  The  Record-Union.  The 
editorial  of  Dec.  the  13th  professed  to  give  "  a  statement 
of  the  facts  "  (see  the  Appendix  p.  10),  and  that  of 
Dec.  the  20th  professes  to  give  ''the  story"  (Id.  18), 
and  in  that  "  statement  of  the  facts  "  and  also  in  that 
"  story,"  all  that  suppression  of  the  facts  which  show 
the  guilt  of  the  Associate  Justice  Ralph  C.  Harrison  is 
cunningly  practiced  precisely  as  in  the  judgment  of 
disbarment. 

Another  designed  falsehood  in  the  judgment  of  dis- 
barment is  the  following :  By  means  of  the  trickeries 
of  covert  assumption  and  ignoratio  elenchi  (described  on 
pages  147-154  above)  Mrs.  Levinson  and  her  daugh- 
ters are  represented  as  having  agreed  to  the  Newmans' 
inventory  and  appraisement  in  every  particular  except 
that  of  the  omission  of  the  good  will  of  the   business. 


243 

See,  for  instance,  the  following  language  (Appendix  p. 

24): 

*  *  "it  appears  that  Philbrook  thought  that  the  estate 
was  entitled  to  a  share  of  the  '  good  will '  of  the  said  firm, 
while  Justice  Harrison  was  of  the  opinion  that  under  the  said 
articles  of  copartnership  the  estate  of  Levinson  had  no  in- 
terest in  the  good  will,  but  was  entitled  only  to  its  share  of 
the  partnership  property,  to  be  ascertained  as  provided  in 
said  articles.  It  is  clear  that  this  was  the  only  point  of  dif- 
ference existing  at  the  time  of  said  settlement,"  etc. 

See  now  the  infamous  trickery  of  ignoratio  elenchi  in 
this  passage.  The  fact  was — and  it  was  clearly  and 
emphatically  pointed  out  in  the  brief — that  we  had  an- 
nounced that  we  would  not  accept  the  Newmans'  inven- 
tory and  appraisement  at  all;  and  in  pointing  to  the 
omission  to  account  for  the  good  will  of  the  firm's  busi- 
ness, we  had  only  begun  to  state  our  specific  objections. 
We  had  not  passed  that  first  item  ;  we  had  rejected  the 
whole  inventory  and  appraisement  in  toto^  and,  in  be- 
ginning to  state  the  specific  objections,  had  mentioned 
first  of  all.,  an  important  item  the  omission  of  which  was 
confessed.  And  precisely  as  a  juggler  covers  his  tricks 
by  holding  up  to  the  spectators  some  object  to  divert 
their  attention,  so  do  these  corrupt  judges  take  a  dis- 
honest advantage  of  the  fact  that  Mrs.  Levinson  and 
her  daughters,  in  beginning  to  specify  their  objections 
to  the  Newmans'  inventory  and  appraisement,  had  only 
mentioned  as  a  first  item  the  omission  of  the  good  will, 
and  holding  that  out  as  "  the  only  point  of  difference," 
play  the  trickery  of  falsely  and  dishonestly  represent- 
ing the  Newmans'  inventory  and  appraisement  as 
having  been  agreed  to  in  all  other  particulars.  How 
truly  do  the  logicians  compare  (see  pp.  149-150  above) 
the  trick  called  ignoratio  elenchi  to  the  tricks  of  an 
expert  juggler." 


244 

Let  it  be  noted  that  the  designed  falsehood  of  the 
judgment  of  disbarment  that  Mrs.  Levinson  and  her 
daughters  had  agreed  upon  the  Newmans'  inventory 
and  appraisement  in  every  particular  except  that  of  the 
omission  of  the  good  will  of  the  business — together  with 
the  trickery,  just  described,  with  which  it  is  there  sup- 
ported— w^as  taken  direct  from  The  Record-Union.  It 
was  urged  emphatically  in  the  editorial  published  on 
Dec.  the  20th  (see  the  Appendix,  p.  18). 

Another  self-evident  falsehood  in  the  passage  of  the 
disbarment  judgment  last  quoted  is  the  false  pretense 
expressed  by  the  trick  of  covert  assumption^  that  the 
good  will  of  the  firm's  business  was  not  partnership 
property.  See  the  words,  ^'had  no  interest  in  the  good 
will,  but  was  entitled  only  to  its  share  of  the  partner- 
ship property."  The  utter  falsehood  of  such  a  pre- 
tence is  shown  on  pages  103-105  above. 

Another  designed  and  self-evident  falsehood  of  the 
judgment  of  disbarment  is  the  designedly  false  pre- 
tense that  Justice  Harrison  was  attorney  for  the  execu- 
tor only,  and  not  for  Mrs.  Fanny  Levinson  and  her 
daughters.  This  particular  falsehood  may  be  seen  in 
the  passage  quoted  on  p.  159  above  and  also  on  pages 
23,  24  and  29,  30  of  the  Appendix.  It  is  plainly  an 
effort  to  represent  Justice  Harrison  as  having  held  no 
relation  of  trust  for  Mrs.  Levinson  and  her  daughters, 
an  effort  to  shield  him  by  shifting  the  field  of  inquiry 
to  a  false  position  more  favorable  to  him.  The  false- 
hood is  perpetrated  by  means  of  the  two  tricks  of 
ignoratio  elenchi  and  covert  assiiniption  used  in  combin- 
ation. There  is  the  ignoratio  elenchi  of  holding  Jus- 
tice Harrison  up  as  attorney  for  the  executor  and  rep- 
resenting   his    position    as    such    as  being   something 


I 


245 


different  from  that  of  attorne}^  for  Mrs.  Levinson  and 
her  daughters,  but  avoiding  carefully  any  statement 
of  what  the  difference  in  the  two  positions  would  con- 
sist of.  Notice  the  language — "  he  was  the  attorney  of 
one  Raveley,  executor  of  John  Levinson,  deceased.  *  * 
Philbrook  was  the  attornc}^  for  certain  legatees  of  said 
Levinson  "  (see  the  Appendix  pp.  23-24).  And  there 
is  the  covert  assumption  that  the  attorney  of  the  execu- 
tor held  no  relation  of  trust  for  Mrs.  Levinson  and  her 
daughters,  the  owners  of  the  property  of  whom  the 
executor  was  the  representative.  Now  all  this  part  of 
the  disbarment  judgment  is  designed  falsehood.  Only 
a  little  before  the  disbarment  judgment  was  made  the 
very  Justices  who  took  part  in  it,  made  and  placed  in 
the  Reports  a  decision  (Bergm  vs.  Haight  99  Cal.  52) 
a  decision  expressly  and  emphatically  laid  before  them 
in  the  very  brief  for  which  they  were  disbarring  the 
attorney — a  decision  in  which  they  themselves  had  laid 
it  down  as  the  law  that 

"  hvL  administrator  acts  as  a  trustee  for  the  own- 
ers of  the  property,  whether  heirs  or  the  assignees 
of  heirs,  and  his  attorney  stands  in  the  same  con- 
fidential relation.'' 

Let  it  be  noted  that  the  designed  falsehood  that  Jus- 
tice Ralph  C.  Harrison  had  been  the  attorney  for  the 
executor  only,  and  not  for  Mrs.  Levinson  and  her 
daughters — and  along  with  it  the  trickery  by  which  it 
is  supported,  as  just  pointed  out — was  copied  into  the 
judgment  of  disbarment  from  the  editorials  -  in  The 
Record- Union.  It  was  first  set  up  in  the  editorial  pub- 
lished on  Dec.  the  13th  (see  the  Appendix  p.  10),  and 
was  emphatically  asserted  no  less  than  four  times  in 
that  published  on  Dec.  the  20th  (Id.  pp.  18,  19). 


246 

Another  designed  and  self-evident  falsehood  of  the 
judgment  of  disbarment  is  the  pretense,  constructed  by 
the  combination  of  the  two  tricks  of  ignoratio  elenchi 
and  covert  assumption^  and  for  the  plainly  evident  pur- 
pose of  whitewashing  Justice  Harrison,  the  falsehood 
that  all  that  Justice  Harrison  did  was  "  to  advise  his 
client — the  executor."  (See  the  Appendix  pp.  24,  33). 
To  make  out  the  falsehood,  a  great  part  of  what  Justice 
Harrison  did  is  studiously  suppressed,  and  there  is  the 
covert  assumption  that  merely  to  give  ''  advice  "  entails 
no  liability.  How  differently  the  law  is  meted  out  to 
the  poor  and  lowly  !  In  the  Anarchists^  Case  {Spiess 
vs.  The  People  122  111.  i)  men  were  hanged  for  merely 
giving  advice — advice  resulting  in  murder.  The  Court 
there  said: 

"If  he  set  in  motion  the  physical  power  of 
another  he  is  liable  for  the  result.  "'  *  If  he 
gave  directions  vaguely  and  incautiously,  and  the 
person  receiving  them  acted  according  to  what  he 
might  have  foreseen  would  be  the  understanding^ 
he  is  responsible." 

Let  it  be  noted,  too,  that  the  falsehood  in  the  judg- 
ment of  disbarment  that  all  that  Mr.  Harrison  was  ac- 
cused of  was  ^'advising"  the  executor  "his  client,"  and 
also  the  covert  assumption  that  mere  advice  entails  no 
liability,  was  all  taken  from  The  Record- U^iion.  (See 
the  editorial  published  on  December  the  20th,  Appen- 
dix p.  t8). 

In  the  part  of  the  disbarment  judgment  written 
specially  by  Wm.  H.  Beatty,  the  Chief  Justice,  the  facts 
are  treated  in  the  same  way,  but  with  more  detail. 
Here  the  facts  of  the  case  are  with  brutal  falsehood  and 


247 

dishonesty  suppressed  and  the  trickery  of  covert  as- 
sumption freely  practiced.  Here  the  falsehoods  and 
trickeries  are  practiced  with  far  less  self-control,  far 
less  disguise,  and  with  far  the  more  insolence. 

On  pages  141-142  above,  attention  is  called  to  the 
coarse  and  extreme  insolence  with  which  the  argument 
of  the  brief  is  dishonestly  misrepresented  in  this  par- 
ticular part  of  the  disbarment  judgment.  Can  any- 
thing be  more  insolently  dishonest  than  the  [passage 
shown  at  the  top  of  p.  142  above? 

Here,  too,  there  is  the  same  effort,  by  means  of  the 
same  tricks  of  ignoratio  elenchi  and  covert  assumption^ 
to  represent  Justice  Harrison  as  having  been  the  attor- 
ney for  the  executor  only,  i.  e.^  as  having  occupied  no 
position  of  trust  or  confidence  for  Mrs.  Levinson  and 
her  daughters.  (See  the  Appendix  pp.  30-33).  And  for 
the  same  purpose  of  shielding  Justice  Harrison,  this 
same  falsehood  was  afterwards  diligently  urged,  and  in 
the  same  way,  by  Wm.  H.  Beatty,  the  Chief  Justice,  in 
the  final  decision  of  the  case  in  which  the  brief  was 
filed  (Id.  pp.  62,  63,  64,  65). 

Here,  too,  there  is  the  same  effort,  dishonestly  sup- 
pressing the  facts,  to  represent  Justice  Harrison's  con- 
duct as  only  legal  advice  to  the  executor  (Id.  p.  33). 
And,  brutally  and  insolently  taking  sides  with  the  two 
Newmans,  he  adds — "I  see  nothing  in  the  case  to  jus- 
tify the  conclusion  that  the  advice  '^'  *  was  not  en- 
tirely  proper."  (Id.) 

Here,  too,  there  is  the  same  infamous  falsehood,  built 
up  with  the  same  tricks,  that  Mrs.  Levinson  and  her 
daughters  had  agreed  to  the  Newmans'  inventory  and 
appraisement  in  all  particulars  except  that  of  the  omis- 
sion of  the  good  will  of  the  business   (See  the  Appen- 


248 

dix  p.  33).  And  for  the  same  purpose  of  shielding  Justice 
Harrison,  Wm.  H.  Beatty,  the  Chief  Justice,  afterwards 
set  up,  by  means  of  the  same  tricks,  the  same  falsehood 
in  the  final  decision  of  the  case  for  the  two  Newmans 
(Id.  pp.  62-3). 

To  shield  Justice  Harrison,  Wm.  H.  Beatty,  the 
Chief  Justice,  also  tries,  in  his  special  part  of  the  dis- 
barment judgment,  to  make  out  that  it  was  onl}^  Justice 
Harrison's  "  opinion  "  that  was  in  question,  that  the 
question  was  whether  "Justice  Harrison's  opinion  was 
less  honest  or  less  sound  than  that  of  Mr.  Philbrook '' 
(Id.  p.  33).  To  make  this  out  he  deliberate!}^  sup- 
presses the  great  fact  that,  as  a  means  of  robbing  and 
oppressing  them,  Mrs.  Levinson  and  her  daughters 
were  so  long  deprived,  upon  Justice  Harrison's  advice, 
of  their  means  of  livelihood,  and  also  the  fact  of  their 
efforts  to  escape  from  that  siege  of  penury  by  obtaining 
a  peaceful  compromise.  In  addition,  he  sets  up,  by 
means  of  covert  assumption^  the  insolent,  brutal  false- 
hood that,  except  for  the  articles  of  partnership,  every- 
thing would  have  belonged  to  the  two  Newmans.  See 
the  following  words  shown  on  p.  33  of  the  Appendix : 
"  On  the  contrary,  they  [Mrs.  Levinson  and  her  daugh- 
ters] were  then  and  ever  afterwards  asserting  their 
validity  [the  validity  of  the  partnership  articles]  and 
claiming  under  them."  The  fact  is,  as  Wm.  H.  Beatty, 
the  Chief  Justice,  well  knew  w^hen  he  wrote  those  words, 
that  neither  Mrs.  Levinson  nor  either  of  her  daughters 
ever  asserted  the  validity  of  the  partnership  articles  or 
claimed  under  them.  And  it  is  also  the  plainly  evi- 
dent fact,  as  he  then  well  knew,  that  by  no  possibility 
could  the  validity  of  the  partnership  articles  be  of  any 
benefit  to  Mrs.  Levinson  or  to  either  of  her  daughters. 


249 

It  was  the  two  Newmans  and  they  only  who  were 
asserting  the  validity  of  the  partnership  articles  and 
claiming  under  them,  and  it  was  they  and  they  only 
that  could  be  benefited  by  such  an  assertion  or  by  such 
a  claim.  And,  as  may  be  seen  from  his  own  words, 
shown  on  pp.  33-34  and  61-75  of  the  Appendix,  all  this 
was  well  understood  by  Wm.  H.  Beatty,  the  Chief 
Justice. 

Take  a  final  example,  an  example  which  should  be 
placed  side  by  side  with  one  which  has  already  been 
pointed  out.  On  pages  176-177  above  it  is  shown  that 
in  order  to  exhibit  me  falsely  as  confessing  in  substance 
that  the  brief  th7^eatened  and  menaced  the  Court,  and 
that  I  ought  to  be  disbarred,  Wm.  H.  Beatty,  the  Chief 
Justice,  not  only  took  base  advantage  of  my  oral  words 
uttered  at  a  time  when  I  was  struggling  alone  against 
a  crowd  of  persecutors  who  were  insolently  using  upon 
me  the  whole  power  of  the  State,  not  only  took  base 
advantage  of  my  oral  words,  but,  by  deliberate  lying, 
changed  my  words,  "  a  member  of  the  bar  for  whom  / 
have  the  greatest  respect^''  into  "a  brother  attorney  in 
whom  he  had  confidence ^  In  the  same  spirit  and  in 
the  same  wa}^  he  supports  his  declaration  that  Justice 
Harrison's  "  advice  given  to  the  executor  as  to  the  con- 
struction of  the  partnership  agreement  and  his  duty  to 
settle  according  to  such  construction  "  was  "  entirely 
proper,"— he  supports  that  assertion  with  the  deliberately 
designed  falsehood  that  such  also  ivas  the  argument  of 
my  brief. 

The  passage  here  referred  to  should  also  be  compared 
with  one  in  the  part  of  the  disbarment  judgment  signed 
by  five  Justices.  There  its  authors,  while  openly  tak- 
ing sides  with  the  two  Newmans,  use  more  self  control, 


250 

and  keep  to  generalities,  saying  (See  the  Appendix,  p. 

*  *  "  There  were  articles  of  co-partnership  of  the  said 
firm  of  Newman  &  Levinson,  existing  and  in  force  at  the 
time  of  the  death  of  Levinson,  which  provided,  or  at  least 
purported  to  provide,  for  the  disposition  of  the  interest  in 
the  firm  property  and  business  of  either  partner  upon  his 
death." 

And  let  it  be  noted,  in  passing,  that  the  false  assertion 
in  the  judgment  of  disbarment,  ignoring  the  evidence 
(see  pp.  17-20  above), — the  false  assertion  that  ''There 
were  articles  of  copartnership,"  etc.,  "  which  provided, 
or  at  least  purported  to  provide  for  the  disposition,"  etc. 
(the*passage  just  quoted),  was  copied  direct  from  the 
editorial  published  in  The  Record-Union  on  Dec.  the 
20th  (see  the  Appendix,  p.  18).  Let  it  be  noted,  too, 
that  the  word  "provided"  and  the  phrase  "  at  least  pur- 
ported to  provide,"  used  in  the  passage  last  quoted, 
mean  precisely  the  same  thing. 

Wm.  H.  Beatty,  the  Chief  Justice,  handles  the  same 
point  with  the  same  malevolence,  with  equal  cunning, 
but  with  greater  boldness.  After  trying  to  make  out 
that  it  was  only  Justice  Harrison's  "opinion"  that  was 
in  question,  and  declaring  that  he  sees  "  nothing  in  the 
case  to  justify  the  conclusion  that  the  advice  given  [by 
Justice  Harrison]  to  the  executor  as  to  the  construction 
of  the  partnership  agreement  and  his  duty  to  settle  ac- 
cording to  such  construction  was  not  entirely  proper" 
(Appendix,  p.  33),  he  attempts  to  support  his  assertion 
by  the  deliberate  and  stupendous  lie  that  the  brief  also 
argued  that  such  was  the  effect  of  the  articles  of  part- 
nership.    This  he  does  in  the  following  words   (Id.  pp. 

33-4): 

^  ^  "Mr.  Philbrook,  indeed,  is  not  entirely  consistent 
with  himself  in  this  matter,    for,   unless  I   have  misappre- 


251 

hended  his  position,  he  is  now  claiming  that  the  Newmans, 
by  the  exercise  of  undue  influence,  induced  their  dying  and 
partially  demented  partner  to  execute  an  agreement  which 
sacrificed  his  interest  in  the  good  will;  and,  if  this  is  so,  it  is 
scarcely  consistent  to  claim  that  Judge  Harrison  miscon- 
strued it,  or  that  he  can  be  blamed  for  the  advice  given  to 
the  executor  at  a  time  when  neither  Mr.  Philbrook  nor  any 
one  else  had  ever  suggested  fraud  or  undue  influence  in  the 
procurement  of  the  agreement." 

That  declaration  of  Wm.  H.  Beatty,  the  Chief  Jus- 
tice, concerning  the  argument  of  the  brief,  is  a  delib- 
erately designed  falsehood.  The  brief  is  still  on  file  in 
the  Supreme  Court  of  California  as  one  of  the  exhibits 
filed  with  my  answer  to  the  citation.  There  the  brief 
may  still  be  seen.  One  whole  division  of  it  (division 
IX,  extending  from  p.  126  to  p.  151)  is  devoted  to  show- 
ing fully,  elaborately  and  emphatically  that,  although 
the  Newmans  had  prepared  the  articles  of  partnership 
as  a  means  by  which  to  take  advantage  of  their  helpless 
partner,  and  under  color  of  which  to  claim  the  right  to 
take  at  his  death  his  interest  in  the  firm,  yet,  that  the 
very  language  of  those  articles  not  only  failed  to  ''  sac- 
rifice his  interest  in  the  good  will,"  but  gave  the  New- 
mans no  right  whatever  to  take  the  whole  or  any  part 
of  his  interest  in  the  firm.  And  although  the  authors 
of  the  disbarment,  when  they  made  the  disbarment, 
struck  the  brief  from  the  files  of  the  suit  in  support  of 
which  it  had  been  prepared  and  filed,  yet  all  the  part  of 
it  containing  the  argument  here  stated  was  soon  after 
filed  again  by  Mr.  Ira  P.  Rankin,  the  special  administra- 
tor, as  his  brief.  And  that  the  brief  not  only  contained 
that  argument,  but  that  the  argument  was  correct,  is  con- 
fessed by  Wm.  H.  Beatty,  the  Chief  Justice,  in  his 
final  decision  for  the  two  Newmans  (see  the  Appendix, 
pp.  61,  64,  67-70,  72-73,  74). 


252 

The  deliberate  design  with  which  Wm.  H.  Beatty, 
the  Chief  Justice,  contrived  the  falsehood  in  the  pass- 
age last  quoted,  may  be  still  further  seen  in  the  studied 
cunning  of  his  language.  For  instance,  he  sa3^s,  "  un- 
less I  have  misapprehended  his  position.''  That  cun- 
ning expression  both  added  power  to  the  falsehood  by 
pretending  a  wish  to  be  fair  and  opened  a  road  by 
which  he  could  retreat  if  he  should  find  it  necessary  to 
do  so.  In  fact,  he  could  not  have  honestly  misappre- 
hended the  position,  and  the  plainl}^  evident  malevo- 
lence of  his  entire  concurring  opinion,  as  well  as  his 
language  in  the  final  decision  (shown  on  pp.  6i,  64, 
67-70,  72-73,  74,  of  the  Appendix)  proves  that  he 
did  not  misunderstand  it.  Then,  too,  he  says  (in  the 
passage  last  quoted)  "  he  is  now  claiming  that,''  etc. 
He  cunningly  avoids  saying  expi^essly  that  he  refers  to 
the  claim  made  in  the  brief.  But  his  language  plainly 
does  refer  to  the  brief  and  can'  not  be  understood  as 
referring  to  anything  else. 


The  particulars  above-mentioned  are  but  examples. 
They  only  illustrate  the  treatment  to  which  the  facts 
of  the  case  are  subjected  throughout  the  judgment 
of  disbarment.  It  is  impossible  to  give,  within  the 
limits  of  this  paper,  a  complete  list  of  all  the  particu- 
lars. And  the  foundation  of  this  whole  feature  of  the 
disbarment  judgment  was  published  in  advance  b}^ 
The  Southern  Pacific  Company  on  Dec.  13,  1894,  and 
again  seven  days  later,  in  editorials  in  The  Recoj'd- 
Union  (See  Appendix,  pp.  10-15  and  16-21.) 

Those  editorials  in  The  Record-Union  were  trans- 
ferred to  and  made  to  constitute  the  judgment  of  dis- 


253 

barment  and  were  continued  thence  and  reappear  as 
the  final  decision  of  the  case  for  the  two  Newmans, 
shown  on  pages  51-75  of  the  Appendix. 


i9.     The  Quilt  of    Justice    Harrison   and    His   Confederates 
Confessed.     His  Defenders  Driven  from  the  Field. 

The  sole  owners  of  the  interest  of  the  deceased  part- 
ner, John  Levinson,  in  the  firm  of  Newman  &  Levin- 
son  are  Mrs.  Fanny  Levinson  and  her  two  daughters, 
Julia  and  Ada.  The  executor  was  but  ''  a  trustee  and 
agent  for  the  owners  of  the  property  [Mrs.  Levinson 
and  her  daughters]  '''  '^  and  his  attorney  [Ralph  C. 
Harrison]  stands  in  the  same  confidential  relation." 
This  is  not  only  self-evidently  true,  but,  as  just  shown, 
was,  only  a  little  before  the  brief  was  filed,  expressly  so 
declared  by  the  authors  of  the  disbarment. 

And,  therefore,  the  effort  so  studiously  made  by  The 
Southern  Pacific  Company  in  T/ie  J^ecord-[/niomnd  in 
the  judgment  of  disbarment,  and  also  in  the  final  deci- 
sion of  the  case  afterward  made  for  the  two  Newmans 
— the  laborious  effort  falsely  to  represent  Justice  Har- 
rison as  having  been  attorney  for  the  executor  only, 
and  not  for  Mrs.  Levinson  and  her  daughters,  as  hav- 
ing held  no  relation  of  trust  or  confidence  with  Mrs. 
Levinson  and  her  daughters,  the  false  pretense  that 
he  was  under  no  duty  to  protect  them — all  such  falsely 
placing  of  Justice  Harrison  in  a  position  which  would 
exhibit  his  conduct  in  a  more  favorable  light,  is  a  clear 
confession  of  his  treachery  and  guilt.  Clearly  and  in- 
disputably it  shows  a  sense  that  in  the  position  which 
he  actually  held  his  conduct  cannot  be  defended.     In 


254 

their  efforts  to  defend  him,  his  masters,  The  Southern 
Pacific  Company,  and  his  associates,  the  other  Justices 
of  the  Court,  are,  as  they  themselves  confess,  driven 
from  the  field. 

So,  also,  in  suppressing  the  facts  of  the  case  as  they 
have  done,  in  studiously  trying  to  keep  the  facts  of  the 
case  out  of  sight,  in  so  doing  the  authors  of  the  editor- 
ials in  The  Record- Union  and  of  the  disbarment  and  of 
the  final  decision  for  the  Newmans,  confess  clearly  that, 
in  their  defense  of  their  associate,  the  Justice  Ralph  C. 
Harrison,  they  cannot  face  the  facts.  In  their  efforts 
to  defend  him  they  are  driven  from  the  field. 

So,  also,  in  the  whole  disbarment  proceeding  and 
throughout  the  judgment  of  disbarment,  in  all  its 
malevolence  and  trickeries  and  falsehoods,  in  all  its 
outrage  and  cruelty,  it  is  all  a  confession  that  Justice 
Harrison's  conduct  cannot  be  honestl}^  defended. 

So,  also,  in  the  denial  to  Mrs.  Levinson  and  her 
daughters  of  the  fundamental  right  of  a  hearing  of  the 
case,  and,  after  denying  a  hearing,  the  decision  of  the 
case  for  the  two  Newmans  upon  grounds  reeking 
throughout  with  perfidy  and  contrived  falsehood,  it  is 
all  a  confession  that  Justice  Harrison's  conduct  cannot 
be  fairly  defended,  that  in  their  efforts  to  defend  him, 
his  masters.  The  Southern  Pacific  Compan}^,  and  his 
associates,  the  other  Justices,  are  driven  from  the  field. 

So,  also,  in  relentlessly  holding  upon  the  attorney 
the  false  and  wicked  disbarment — which  has  now  been 
kept  up  for  almost  five  years — as  a  means  of  forcing 
the  attorney  for  Mrs.  Levinson  and  her  daughters  to 
file  in  the  court  a  false  declaration  that  the  case  against 
Justice  Harrison  is  an  ^'  imaginary  state  of  facts  founded 


255 

on  uo  evidence  " — it  is  a  confession   that  he  cannot  be 
defended  by  fair  means. 

And  by  such  facts  the  Associate  Justice,  Ralph  C. 
Harrison,  confesses  his  own  treachery  and  guilt,  and 
in  the  confession  has  added  and  is  adding  to  his  crimes, 
for  in  everything-  which  has  been  done  to  shield  him  it. 
is  he  that  has  been  prompting  it  and  pulling  the  wires. 
To  use  the  words  of  Thomas  Carlyle  : 

^*  Scoundrel  is  scoundrel ;  that  remains  forever 
a  fact,  and  there  exists  not  in  the  earth  whitewash 
that  can  make  the  scoundrel  a  friend  of  this  uni- 
verse." 


20.    Examples  Illustrating  the  Malicious  Insolence  Expressed 
in  the  Judgment  of  Disbarment. 

An  example  of  the  spirit  of  \yickedness  in  which  ;the 
judgment  of  disbarment  is  written  may  be  seen  in  an 
expression  in  the  part  signed  by  five  Justices.  The 
authors  of  the  disbarment  had  found  out  from  some 
private  source  that  the  unfaithful  administrator  who 
had  been  suspended  for  embezzlement  and  who  upon 
being  so  suspended,  had  resigned — as  stated  on  pages 
55-59  above — had  previously  been  taken  by  me  into 
my  law  office  and  assisted  by  me,  and  afterwards,  on  my 
recommendation,  appointed  administrator.  This  fact 
the  authors  of  the  disbarment— unspeakable  traitors 
themselves  and  full  of  fellow  feeling  for  traitors — set 
out  as  an  additional  ground  of  the  disbarment  and  as  an 
insolent  jeer  at  their  victim.  The  passage  where  this  oc- 
curs is  the  following  (See  the  Appendix  p.  26): 


256 

*  ^  "As  respondent  has,  in  the  same  connection,  assailed 
not  only  all  the  members  of  this  Court  ^'  *  but  also  *  * 
a  special  administrator  who  was  appointed  at  his  own  in- 
stance and  out  of  his  own  office,  charity  might  possibl)^  sug- 
gest that  he  is  the  victim  of  abnormal  suspicion  and  dis- 
trust." 

Has  it  not  often  happened,  from  the  very  earliest 
times,  for  a  man  to  be  betrayed  by  a  person  whom  he 
has  befriended  ?  Can  snch  a  misfortune  be  fairly  set 
up  as  a  ground  for  inflicting  "  punishment  "  upon  the 
man  who  has  been  thus  betrayed  ?  Could  malice  or 
insolence  go  much  further  in  assigning  grounds  for 
the  disbarment  ? 


Another  display  of  the  same  spirit  of  wickedness 
may  be  seen  in  the  malicious  avowal  that,  although 
neither  of  the  two  Newmans  was  ostensibly  a  party  to 
the  proceeding  in  the  Probate  Court  settling  the 
suspended  administrator's  account  (stated  on  pp.  55-59 
above),  still  it  was  they  and  their  corrupt  contrivance 
that  had  in  fact  brought  wrong  upon  their  deceased  part- 
ner's family  in  that  proceeding.  This  occurs  in  the  fol- 
lowing passage  (See  the  Appendix,  p.  23): 

^  *  "  and  also  the  transcripts  in  two  other  appeals 
between  the  same  parties,  in  which  the  Newmans  were  also 
successful  in  the  trial  court,  are  made  part  of  the  said  Phil- 
brook's  answer  in  this  present  proceeding." 

One  of  those  "  two  other  appeals  "  is  the  appeal  of 
Mrs.  Levinson-  and  her  daughters  from  the  order  of 
the  Probate  Court  (stated  on  pp,  55-59  above)  settling 
the  suspended  administrator's  account — a  case  in  which 
neither  of  the  Newmans  was  ostensibly  a  party,  but 
where,  as  was  indeed  too  true,  it  was  their  wicked 
agency  that  had  there  also  cut  off  their  dead    partner's 


I 


257 

family  from  justice.  In  the  passage  last  quoted,  tliis 
fact  is  insolently  avowed  and  made  the  subject  of  an 
insolent  jeer. 

Another  example  of  the  same  display  of  wickedness 
may  be  seen  in  the  insolent  brag  that  the  disbarment 
was  inflicted  because  its  authors  had  the  victim  in  their 
power,  because  the  victim  is  one  of  their  ^'^oivn  officers!'^ 

This  occurs  in  the  following  passage  (See  the 
Appendix,  p.  28): 

*  *  "And  when  the  punishment  of  such  an  offense  is 
clearly  within  the  jurisdiction  of  the  Court,  as  in  the  case 
of  one  of  its  own  officers;  it  must  impose  the  penalty  or 
neglect  its  imperative  duty." 

The  plainly  evident  meaning  is :  ^'  We  are  destroy- 
ing you  because  such  is  the  position  we  occupy  and 
such  the  position  that  you  occupy,  that  we  have  the 
physical  ability  to  turn  the  power  of  the  State  of  Cali- 
fornia upon  you  to  your  destruction." 

The  foregoing  are,  however,  but  examples  of  the 
extreme  insolence  and  malice  displayed  throughout  the 
judgment  of  disbarment,  both  in  the  part  signed  by 
five  Justices  and  in  that  written  specially  by  Wm.  H. 
Beatty,  the  chief  Justice.  An^  all  this  characteristic 
feature  of  the  disbarment  was  copied  from  the  editorials 
published  by  The  Southern  Pacific  Company  on 
December  the  13th  and  20th  (See  the  Appendix,  pp. 
10-15  and  16-21).  And  after  the  disbarment,  precisely 
the  same  display  of  malice  and  insolence  toward  the 
victim  was  kept  up  in  editorials  published  in  The 
Record-Union,  See  particularly  pages  34,  36-39,  41- 
43,  44  and  46  of  the  Appendix. 


258 

21.     A  Fable  of  JBsop. 

Some  of  the  features  of  the  judgment  of  disbarment 
which  have  been  pointed  out  may  be  easily  recognized 
in  the  following  fable  of  ^sop: 

"THE  WOLF  AND  THE  LAMB. 

'^One  hot  sultry  day  a  Wolf  and  a  Lamb  happened  to 
come  just  at  the  same  time  to  quench  their  thirst  in 
the  stream  of  a  clear  silver  brook  that  ran  tumbling 
down  the  side  of  a  rocky  mountain.  The  Wolf  stood 
upon  the  higher  ground,  and  the  Lamb  at  some  distance 
from  him  down  the  current.  The  Wolf,  having  a  mind 
to  pick  a  quarrel  with  him,  asked  him  what  he  meant 
by  disturbing  the  water  and  making  it  so  muddy  that 
he  could  not  drink;  and  at  the  same  time  demanded 
satisfaction.  The  Lamb,  frightened  at  this  threatening 
charge,  told  him,  in  a  tone  as  mild  as  possible,  that, 
with  humble  submission,  he  could  not  conceive  how 
that  could  be;  since  the  water  which  he  drank  ran  down 
from  the  Wolf  to  him,  and  therefore  could  not  be  dis- 
turbed so  far  up  the  stream.  "Be  that  as  it  will,"  re- 
plies the  Wolf,  "You  are  a  rascal;  and  I  have  been  told 
that  you  treated  me  with  ill  language  behind  my  back 
about  a  year  ago."  "Upon  my  word,"  says  the  Lamb, 
"the  time  you  mention  was  before  I  was  born."  The 
Wolf,  finding  it  to  no  purpose  to  argue  any  longer 
against  truth,  fell  into  a  great  passion,  snarling  and 
foaming  at  the  mouth  as  if  he  had  been  mad;  and, 
drawing  nearer  to  the  Lamb,  "Sirrah,"  says  he,  "if  it  was 
not  you,  it  was  your  father,  and  that  is  all  one."  So 
he  seized  the  poor  innocent  helpless  thing,  tore  it  to 
pieces  and  made  a  meal  of  it." 


259 

22.     The  False  Pretense  of  Wm.    H.  Beatty,  the  Chief  Jus- 
tice, That  He  Did  Not  Concur  in  All  the  Grounds. 

Wm.  H.  Beatty,  the  Chief  Justice,  begins  his  con- 
curring opinion  as  follows  (See  the  Appendix  p.  29) : 

"My  views  of  the  case  differ  in  some  particulars  from  those 
of  my  associates. 

"It  was  not  because  of  Mr.  Philbrook's  assault  upon  a 
member  of  this  Court — gross  and  unjustifiable  as  I  deemed 
it  to  be — that  I  joined  in  the  order  citing  him  to  show  cause. 
So  far  as  that  part  of  his  offense  was  concerned  I  should 
have  waited"  etc. 

He  then  devotes  himself  to  the  falsehood  and  trick- 
ery of  pretending  that  the  brief  ^'threatened  the  other 
members  of  the  Court,"  and  then  continues  thus  (Id. 

pp.  32-3)- 

' '  Upon  the  other  branch  of  the  case  I  should  have  had 
nothing  to  say  if  Mr.  Philbrook  had  not,  by  devoting  him- 
self to  that  exclusively  and  ignoring  everything  else,  chal- 
lenged the  judgment  and  opinion  of  the  Court.  Under  the 
circumstances  I  cannot  pass  it  over  in  silence  without 
seeming  to  dissent  from  the  views  of  my  associates,  and 
therefore,"  etc.,  etc. 

And  he  then  proceeds,  with  rankest  dishonesty  and 
trickery  and  falsehood,  to  whitewash  the  Associate  Jus- 
tice Ralph  C.  Harrison. 

Those  declarations  of  Wm.  H.  Beatty,  the  Chief  Jus- 
tice, that  "My  views  of  the  case  differ  in  some  particu- 
lars from  those  of  ni}^  associates,"  and  that  '*It  was  not 
because  of  Mr.  Philbrook's  assault  upon  a  member  of 
this  Court  *  *  that  I  joined  in  the  order  citing  hiiii 
to  show  cause"  and  that  "Upon  the  other  branch  of  the 
case  I  should  have  had  nothing  to  say  if  Mr.  Philbrook 
had  not,  by  devoting  himself  to  that  exclusively  and 
ignoring  everything  else,  challenged  the  judgment  and 
opinion  of  the  Court" — are  a  confession  on  his  part  that 


26o 


he  was  sensible  of  the  outrage  of  disbarring  the  attor- 
ney for  showing  for  his  clients  the  fraud  and  wicked- 
ness practiced  against  them  by  Ralph  C.  Harrison. 
But  so  far  as  pretending  that  he,  Wm.  H.  Beatty,  did 
not  join  in  inflicting  the  disbarment  upon  that  ground, 
or  that  he  did  not  concur  wath  his  associates  in  disbar- 
ring the  attorney  for  such  a  cause,  those  declarations 
are  manifest  and  unmitigated  falsehoods.  He  indeed 
betrays  this  fact  in  the  very  words  he  uses  in  making 
those  declarations,  for  he  there  says,  "  So  far  as  that 
part  of  his  offense  was  concerned,"  ^'  Upon  the  other 
branch  of  the  case,"  and,  *'  I  cannot  pass  it  over  in 
silence  without  seeming  to  dissent  from  the  views  of  my 
associates."  He  himself  calls  it  "  part  of  his  offense," 
and  a  ''  branch  of  the  case,"  and  avows  that  he  does 
not  ''  dissent  from  the  views  of  my  associates."  And 
his  entire  concurring  opinion  shows  manifestly  that  he 
concurred  with  his  associates  on  all  the  grounds,  and 
that  he  in  fact  joined  in  inflicting  the  disbarment  upon 
the  sole  actual  ground  that  the  attorney  had  exposed 
for  his  clients  the  outrageous  fraud  and  treachery  and 
wickedness  of  Ralph  C.  Harrison. 


23.     The  Distinction  Between  the  Two  Parts  of  the  Disbar- 
ment Judgment. 

4iThe  distinctive  differences  between  the  part  of  the 
disbarment  judgment  signed  by  five  Justices  and  that 
prepared  specially  by  Wm.  H.  Beatty,  the  Chief  Jus- 
tice, are  indicated  in  the  foregoing  review. 

In  the  part  signed  by  five  Justices,  there  is  the  more 
self-control,  the  greater  art  of  concealment,  and,  for  this 


26l 

purpose,  the  more  skillful  avoidance  of  details.  Note, 
too,  the  peculiar  way  in  which  it  is  signed,  the  Justices 
signing  in  a  bunch,  so  that  it  cannot  be  told  what 
particular  individual  drew  it  up.  This  was  evidently 
either  because  that  part  of  the  disbarment  (which  Wm. 
H.  Beatty,  the  Chief  Justice,  calls  "  the  opinion  of  the 
Court,"  see  the  Appendix,  p.  31)  was  not  in  fact  drawn 
up  by  any  of  those  who  signed  it,  but  by  some  private 
employee  of  The  Southern  Pacific  Company,  or  else  it 
was  so  signed  from  a  sense  of  guilt  and  with  a  wish  to 
conceal  the  draughtsman. 

In  the  part  prepared  by  Wm.  H.  Beatty,  the  Chief 
Justice,  there  is,  along  with  the  same  malevolence  and 
studied  cunning,  the  less  self-control,  the  less  skill  at 
disguise,  the  more  detail,  the  rougher  workmanship. 
In  the  work  of  the  Chief  Justice  we  see  self-conscious 
dishonesty  upon  dishonesty,  trickery  upon  trickery,  lie 
after  lie,  and  insolence  after  insolence  in  far  the  more 
open  and  specific  form.  In  all  these  particulars  he 
stands  in  front  of  the  others,  like  an  index  or  table  of 
contents,  a  chief  in  villainy  and  wickedness,  in  every 
quality  characteristic  of  the  foul,  malicious,  cruel,  cow- 
ardly scoundrel. 

A  similar  distinction  will  be  seen  between  the  two 
parts  of  the  final  decision  of  the  case  in  which  the  brief 
was  filed  (shown  on  pages  51-75  of  the  Appendix), 
and  is  pointed  out  below.  For  Wm.  H.  Beatty,  the 
Chief  Justice,  a  lie  has  apparently  the  same  fascination 
that  the  flame  of  a  candle  has  for  a  moth ;  he  cannot 
resist  the  temptation  to  run  his  head  clear  into  it  openly 
and  plainly. 

This  peculiarity  in  the  work  of  Wm.  H.  Beatty,  the 
Chief  Justice,  has  its  value,  and  might  well   suggest  a 


262 


chapter  upon  the  comparative  values  of  the  various 
kinds  of  scoundrel.  It  furnishes  the  means  for  prov- 
ing the  crime  more  clearly  and  fully. 

For  instance,  in  the  language  of  Wm.  H.  Beatty,  the 
Chief  Justice  (shown  on  p.  32  of  the  Appendix),  "Mr. 
Philbrook  had  not  only  been  informed  by  a  brother 
attorney  of  the  offensive  construction  which  might  be 
put  upon  his  brief,  he  had  been  notified  at  the  opening 
of  the  proceedings  by  the  argument  of  Mr.  Hayne  that 
such  was  the  construction  placed  upon  it  by  the  com- 
mittee of  the  Bar  Association,  and  he  was  plainly 
informed  from  the  bench  that  it  was  understood  in  the 
same  way  by  the  Court.  If,  in  spite  of  these  plain 
intimations"  '^  * — in  those  words  it  is  confessed  both 
that  he  knew  that  the  citation  did  not  charge  that  the 
brief  contained  a  threat  or  menace^  and  that  he  was  aware 
of  the  outrage  of  inflicting  the  disbarment  without  a  pre- 
vious accusation  of  the  grounds  upon  which  it  was  to  be 
made  and  a  hearing.  And  that  same  confession  is  made 
in  the  same  way  in  the  editorial  exploitation  of  those 
words  of  Wm.  H.  Beatty,  the  Chief  Justice,  in  The 
Record-Union  of  Jan.  the  14th.  See  the  words  of  the 
editorial,  "  even  after  being  told  that  the  Court  regarded 
his  language  as  threatening,  he  refused  to  withdraw  it." 
(Appendix,  p.  40). 


24.     The  Disbarment  is  the  Work  of  The  Southern   Pacific 

Company. 

Let  the  reader  now  compare  the  judgment  of  disbar- 
ment— compare  its  features  pointed  out  in  detail  in  the 
foregoing  review,  its  dishonest  suppressions  of  the  facts 


263 

relating  to  the  fraud,  treachery,  oppression  and  corrupt 
practice  of  Ralph  C.  Harrison,  its  peculiar  and  de- 
signed falsehoods  about  the  facts,  its  peculiar  and  de- 
signed misrepresentation  of  the  argument  of  the  brief, 
its  peculiar  and  vindictive  falsehoods  about  the  law,  its 
insolent  trampling  down  of  every  principle  of  natural 
justice  and  every  guaranty  of  the  Constitution  and  the 
law  applicable  to  the  case,  its  peculiar  and  malevolent 
trickeries  and  sophistries,  its  peculiar  terms  and 
phrases  and  tricks  of  expression,  and  the  spirit  of  false- 
hood and  outrage  and  malice  and  wickedness  manifest 
throughout,  and  its  plainly  evident  motive — compare 
all  those  numerous  and  strongly  marked  features,  as 
well  as  the  act  as  a  whole,  with  the  same  identical  fea- 
tures in  the  articles  which  were  previously  published 
by  The  Southern  Pacific  Company  in  The  Evening 
Post  and  The  Re  cord- Union  ^  articles  which  are  referred 
to  in  the  foregoing  review  and  are  shown  in  full  in  the 
Appendix. 

Let  it  be  borne  in  mind  that  in  no  other  newspaper 
did  anything  of  the  kind  appear — in  no  other  newspa- 
per did  there  appear  so  much  as  a  single  item  of  any 
of  those  peculiar  features  which  appear  in  the  judg- 
ment of  disbarment. 


In  Chapter  vii  below,  an  account  is  given  of  an  at- 
tempted trial  in  January,  1898,  in  the  United  States 
Circuit  Court  at  San  Francisco,  of  a  suit  brought  by 
me  to  recover  damages  for  the  disbarment.  In  prepar- 
ing for  that  trial  I  had  carefully  concealed  any  dis- 
closure or  intimation  that  I  had  discovered  the  agency 
of  The  Southern  Pacific   Company  in  the  disbarment, 


264 

and  by  so  doing  was  able  to  subpoena  and  bring  into 
Court  Wm.  H.  Mills  himself  and  with  him  all  the  edi- 
torial writers  of  The  Record- U^izon,  and,  among  them, 
one  Joseph  A.  Woodson  of  Sacramento.  When  they 
appeared  there,  Wm.  H.  Mills  came  up  to  me  and  with 
all  his  extreme  smoothness,  as  if  brim  full  of — to  use 
again  the  words  of  Burke — "the  sentimental  delicacies 
of  bribery  and  corruption,"  he  requested  me  to  excuse 
as  many  of  his  editors  as  I  could  because  their  en- 
forced absence  from  Secramento  would  ^cripple, the  pa- 
per. He  then  brought  up  and  introduced  Joseph  A. 
Woodson,  a  pallid-faced,  watery-eyed,  nervously  un- 
strung person  of  about  54  years  of  age,  and  told  me  in 
his  presence  that  it  was  that  Joseph  A.  Woodson  who 
had  written  all  those  editorials  in  The  Record- Union ^ 
and  he  said  also  that  many  years  previously  Woodson 
was  himself  a  practicing  lawyer.  To  all  this  statement 
Woodson  then  assented. 

Suppose,  then,  that  it  was  Joseph  A.  Woodson  of 
Sacramento,  employee  of  The  Southern  Pacific  Com- 
pany on  The  Record- Union ^  that  wrote  those  editorials. 
It  is  then  extremely  probable  that  Woodson  wrote  also 
all  that  part  of  the  disbarment  judgment  which  was 
signed  by  five  Justices,  the  part  which  Wm.  H.  Beatty, 
the  Chief  Justice,  calls  "the  opinion  of  the  Court  (See 
the  Appendix  p.  31)  and  also  the  citation. 

In  the  first  place,  it  is  the  same  individual  mind  that 
appears  both  in  the  editorials  and  in  the  judgment  of 
disbarment.  In  both  it  is  the  mind  of  one  who,  though 
glib  with  language,  has  only  a  smattering  of  law  and 
is  without  conception  of  its  principles.  For  instance 
(as  pointed  out  on  p.  262  above),  it  is  only  in  the  part 
written  specially  by  Wm.  H.  Beatty,  the  Chief  Justice, 


265 

that  there  appears  a  consciousness  that  the  victim 
ought  to  have  been  given  a  hearing;  and  (as  pointed 
on  pp.  259-60  above),  it  is  only  in  that  part  that  there 
appears  a  sense  of  the  outrage  of  making  the  pretense 
that  Justice  Harrison  was  not  guilty  of  the  fraud,  a 
ground  of  the  disbarment.  And,  as  that  infamously 
lying  IMjUt  pretense  was  the  only  real  ground  of  the 
disbarment,  that  confession  of  Wm.  H.  Beatty,  the 
Chief  Justice,  together  with  his  confession  that  the 
victim  ought  to  have  had  a  hearing  upon  the  pretended 
grounds,  and  his  infamous  efforts  to  falsely  represent 
the  victim  as  admitting  the  justice  of  the  disbarment — 
makes  his  whole  concurring  opinion  a  declaration  that 
the  act  in  which  he  was  joining  was  a  great  crime,  and 
that  he  felt  it  to  be  such.  And  both  in  the  editorials 
and  the  disbarment  judgment  (the  part  signed  by  five 
Justices)  the  temper  manifested  is  that  of  a  pallid,  ner- 
vously unstrung,  ill-natured  underling,  about  Wood- 
son's age.  The  difference  between  the  editorials  and 
the  judgment  is  precisely  that  and  only  that  which 
would  result  from  the  effort  that  the  editorial  writer 
would  naturally  make  to  adopt  a  more  judicial  tone 
when  formulating  his  editorials  into  a  judgment  of  the 
Court. 

Again,  the  same  identical  tricks  of  expression  that 
appear  in  the  editorials  reappear  in  the  judgment  of 
disbarment ;  and  the  correspondence  is  so  minute  that 
it  is  incredible  that  it  happened  otherwise  than  from  the 
hand  of  the  same  workman.  For  instance,  in  the  edi- 
torial in  The  Record-Union  on  Dec.  the  13th  there  is 
the  trick  of  expression,  "so  grievous  an  offense"  (see 
the  Appendix,  p.  10);  and  in  the  disbarment  judg- 
ment  there   is    the    same   trick    of   expression,   only 


266 

toned  down  a  little,  in  the  words  "  no  graver  of- 
fense" (Id.  p.  27).  In  the  editorials  there  are 
many  snch  expressions  as  "  maintain  its  dignity, 
because  it  is  the  final  tribunal  of  the  people  "  (Id.  p. 
14),  and  these  reappear  in  the  judgment  of  disbarment 
in  the  expression,  "  sense  of  his  duty  to  the  people  to 
preserve  the  due  dignity  of  their  courts"  (Id.  p.  27),  so, 
too,  the  idiotic  contradiction  in  terms,  ^'  outrageous 
verbal  assaults  "  in  the  judgment  of  disbarment,  ap- 
peared first  in  The  Record- Union  as  an  "  outrageous 
assault  "  (Id.  p.  10)  and  in  The  Evening  Post  as  "  wordy 
bludgeons"  (Id.  p.  21).  So,  too,  the  false  terms,  men- 
ace, threat,  assault,  assails,  offense,  offender,  punish- 
ment, penalty,  privileges — terms  and  tricks  of  expres- 
sion in  the  judgment  of  disbarment  (all  of  them  falsely 
used  there),  all  appear  first  in  the  editorials.  On  pp.  208- 
9  above,  some  of  the  peculiar  tricks  of  expression  falsely 
belittling  the  position  of  an  attorney,  which  appear  in 
the  judgment  of  disbarment,  are  shown  to  have  ap- 
peared beforehand  in  those  precise  words  in  the  editorials. 
And  those  expressions  falsely  belittling  with  petty 
malice  the  position  of  an  attorney  are  precisely  such  as 
would  come  naturally  from  a  broken-down,  unsuccess- 
ful attorney,  reduced  to  an  editorial  flunkey  of 
The  Southern  Pacific  Company,  and  so  old  as  both 
to  have  abandoned  hope  of  success  in  the  profes- 
sion of  the  law,  and  to  feel  bitter  at  having  failed  at 
it — an  age  which  would  be  about  that  of  Woodson. 
The  peculiar  and  strongly  marked  tricks  of  expression 
in  which  the  judgment  of  disbarment  corresponds 
strictly  with  the  editorials  could  be  greatly  extended. 
Those  which  are  here  mentioned  are  only  a  small  part 
of  those  pointed  out  in  detail  in  preceding  pages. 


267 

On  page  125  above  it  is  stated  that  six  of  the  new 
accusations  did  not  appear  beforehand  in  The  Record- 
Union.  That  statement  is,  however,  erroneous.  The 
new  charge  that  "it  [the  brief]  also  contains  language 
highly  reprehensible  concerning  the  learned  Judge  of 
the  Superior  Court,''  etc.,  was  also  made  beforehand  in 
the  editorial  of  December  the  13th  (see  the  Appendix, 
p.  11).  And  that  new  accusation  that  "  Philbrook  bit- 
terly assails  the  Superior  Court  in  this  same  offensive 
brief,''  displays*  the  intentW7z  which  discovered  all  of 
those  six  new  accusations  and  placed  them  in  the 
judgment  of  disbarment. 

Again,  the  judgment  of  disbarment  was  produced  in 
a  hurry,  so  as  to  be  signed  by  the  two  Justices  whose 
terms  were  expiring,  and  thus  to  avoid  any  re-argu- 
ment;  for  a  re-argument  would  have  only  set  the 
newspapers  talking  more  of  the  fraud  of  Justice  Harri- 
son. The  season,  too,  was  that  of  Christmas  and  the  New 
Year,  a  time  more  than  usually  occupied  with  social 
diversions.  In  managing  the  disbarment  proceeding 
and  in  writing  the  judgment,  Woodson  would  naturally 
feel,  and  would  naturally  have  been  told,  that  the  rea- 
son why  he  was  brought  from  Sacramento  and  assigned 
to  the  task  was  that  the  Justices  and  the  better  lawyers 
of  The  Southern  Pacific  Company  were  at  that  time 
unusually  busy  with  other  matters.  How  naturally, 
then,  would  come  from  him  the  words  of  the  disbarment 
judgment  (see  the  Appendix,  p.  28):  "It  would  have 
been  much  more  agreeable  for  us  to  have  devoted  the 
time  to  its  hearing  to  other  business."  But,  as  coming 
from  the  Justices,  those  words  seem  exceedingly  strange. 

Again,  there  is  the  peculiar  way  in  which  the  disbar- 
ment judgment    is    signed,  the  Justices   signing  in  a 


268 


bunch.  I  am  not  aware  that  any  other  decision  or 
judgment  of  the  Court  was  ever  signed  in  such  a  way. 
The  way  in  which  it  is  signed  strongly  suggests  that  it 
was  written  by  an  outsider,  by  a  person  unfamiliar  with 
the  practice  of  the  Court,  and  taken  around  to  and 
signed  by  the  Justices  and  then  filed.  The  shortness 
of  the  time  within  which  it  was  done,  the  press  of  other 
matters,  and  the  arrogant  sense  of  their  power  over 
their  victim,  naturally  made  the  authors  of  the  disbar- 
ment careless  of  the  usual  forms. 

The  fact  of  the  separate  concurring  opinion  of 
Wni.  H.  Beatty,  the  Chief  Justice — and  the  peculiar 
fact  that,  although  a  concurring  opinion,  it  lays  down 
(as  above  shown)  precisely  the  same  grounds  as  that 
which  it  calls  the  ^'opinion  of  the  Court" — fortifies  the 
probability  that  the  ''  opinion  of  the  Court  "  was  written 
by  Woodson.  How  natural  for  the  leaders  of  The 
Southern  Pacific  Company,  knowing  Woodson  to  have 
been  many  years  out  of  practice  as  a  lawyer,  and  a  tyro 
in  such  work — how  natural  for  them  to  feel  some  dis- 
trust of  a  judgment  written  by  him,  and,  because  of 
such  distrust,  to  order  William  H.  Beatty,  the  Chief 
Justice,  to  write  a  separate  concurring  opinion.  And 
the  concurring  opinion  of  Wm.  H.  Beatty,  the  Chief  Jus- 
tice, has  all  the  earmarks  of  having  been  prepared,  not 
of  his  own  will,  but  in  obedience  to  just  such  an  order  ; 
for  all  that  he  did  was  to  take  the  part  signed  by  five 
Justices  and  try  to  recast  and  expand  it — with  the  re- 
sult (as  already  pointed  out)  of  only  exhibiting  its  vices 
in  a  more  lurid  light. 

Shortly  after  the  disbarment  was  made,  I  interviewed 
three  of  the  Justices,  McFarland,  Fitzgerald  and  De 
Haven,  and  asked  each  of  them  separately  to  tell  me 


269 

who  prepared  the  disbarment  judgment.  Every  one 
of  them  refused  to  tell.  Now,  why  should  they  refuse  ? 
They  had  all  signed  it ;  every  one  had  made  himself 
responsible  for  it.  Their  refusal  to  tell  who  prepared  it 
points  also  to  the  fact  that  it  was  prepared  by  some 
person  not  a  member  of  the  Court. 

Take  now  the  citation  (shown  on  pp.  4-6  of  the 
Appendix).  The  citation  is  signed  by  the  Justices  in  a 
bunch.  And  while  the  signatures  of  four  Justices 
would  have  been  fully  as  good  as  the  signatures  of  all 
—  a  fact  well  known  to  all  persons  familiar  with  the 
practice  of  the  Court — it  was  signed  by  six  Justices,  by 
all  except  Harrison.  Then,  too,  although  Wm.  H. 
Beatty,  the  Chief  Justice,  signed  first,  yet  the  language 
of  his  concurring  opinion  indicates  that  he  did  not  pre- 
pare the  citation,  but  only  "joined  in''  (see  the  Appen- 
dix, p.  29).  True,  if  he  had  said,  by  direct  assertion, 
that  he  did  not  prepare  the  citation,  that  might  well  be 
taken  as  proof  that  he  did  prepare  it.  He  does  not, 
however,  say  it  directly,  but  apparently  only  by  an 
incidental  expression ;  and  it  is  possible  that  he  may 
tell  the  truth  when  off  his  guard.  It  was  then  brought 
to  him  to  "join  in''  upon  and  was  then  taken  around 
also  to  five  others  and  they,  too,  made  to  ''join  in." 
And  it  is  precisely  the  lawyer  long  out  of  practice, 
Woodson,  brought  from  Sacramento,  acting  under 
orders  to  have  the  whole  six  "join  in" — it  is  precisely 
such  a  person  who  might  with  the  best  face  demand 
the  six  signatures.  And  his  credentials  from  The 
Southern  Pacific  Company  would  naturally  ensure  obe- 
dience. And,  as  is  extremely  probable,  he  afterwards 
took  around  the  disbarment  judgment  and  had  five 
of  the  Justices  again  "join  in  "   by  signing,  and  deliv- 


270    • 

ered  to  Wm.  H.  Beatty,  the  Chief  Justice,  the  order  to 
write  a  concurring  opinion. 

In  the  news  article  published  in  The  Evening  Post 
on  Dec.  7,  1894 — the  day  when  the  citation  was  signed 
— the  hand  of  the  writer  of  the  editorials  in  The  Rec- 
ord-Union (i.  <?.,  the  hand  of  Woodson)  is  apparent. 
Take  the  expressions  "  Philbrook's  Fix,"  "  A  Most 
Abject  Apology,"  "  attack  upon  the  Supreme  Court  in 
general  and  Justice  Harrison  in  particular  has  landed 
him  in  a  peck  of  trouble,"  etc.  Those  expressions  are 
the  same  in  kind  as  those  which  afterward  appeared  in 
the  editorials  in  The  Record-Union.  It  is  probable, 
then,  that  Woodson  was  in  San  Francisco  on  the  day 
when  the  citation  was  signed,  and,  after  having  it 
signed,  wrote  the  news  article  for  The  Evening  Post. 

On  the  other  hand,  the  editorials  in  The  Evening 
Post,  although  using  the  same  peculiar  words,  already 
specified,  as  those  which  appear  in  The  Record- Union 
and  in  the  judgment,  are  written  in  a  very  different 
style,  a  smooth,  oily  style.  Evidently  the  editorials  in 
The  Evening  Post  were  not  written  by  Woodson,  but 
by  his  superior.  And  I  have  been  told  by  good  author- 
ity that  the  style  of  those  editorials  in  The  Evening 
Post  is  that  of  Wm.  H.  Mills,  Woodson's  superior. 

Again,  the  editorials  in  The  Record-Union  (written 
by  Woodson)  show  a  careful  examination  and  close 
study  of  the  brief  and  of  the  records  relating  to  the 
case;  and  all  the  briefs  filed  and  the  records  relating 
to  the  case  were  in  San  Francisco.  It  is,  then,  reason- 
able to  suppose  that  Woodson  was  brought  .  to  San 
Francisco  for  the  purposes  of  the  disbarment.  And 
this  conclusion  is  much  fortified  by  the  extraordinary 
fullness  and  energy  with  which  The  Record-  Union  was 


271 

used  in  the  disbarment.  As  already  mentioned,  the 
editorial  published  on  Dec.  the  13th  occupied  almost 
the  entire  editorial  part  of  the  paper,  and  that  published 
on  Dec.  the  30th  occupied  its  entire  editorial  side. 

Shortly  after  the  disbarment  was  made  an  acquaint- 
ance of  Woodson  told  me  that  throughout  the  mock 
hearing  of  the  citation  (on  Dec.  the  17th  and  the  i8th) 
Woodson  was  in  San  Francisco  and  present  in  the 
court  room,  and  that  he  appeared  to  be  taking  great 
interest  in  the  case,  and  the  editorial  in  The  Record- 
Union  on  Dec.  the  20th  professes  to  have  been  written 
by  a  person  who  was  present  at  the  hearing  of  the  cita- 
tion (see  the  Appendix  p.  17). 

As  already  shown,  the  argument  delivered  by  Rob- 
ert Y.  Hayne  at  the  mock  hearing  of  the  citation  was 
only  that  of  the  editorial  written  by  Woodson  and  pub- 
lished four  days  previously  in  The  Record-Union.  And, 
as  has  also  been  pointed  out,  the  idea  of  bringing  in  a 
"committee  from  the  Bar  Association  of  San  Fran- 
cisco "  to  bolster  the  crime,  may  be  seen  in  the  news 
article  in  The  Evening  Post  of  Dec.  7,  1894,  an  article 
evidently  written  by  Woodson.  Base  as  wa^  the  work 
done  by  Woodson,  still  it  is  evident  that  Robert  Y. 
Hayne  and  his  '*  committee  from  the  Bar  Association 
of  San  Francisco ''  were  but  puppets  moved  through 
Woodson.  Hayne  knew  at  the  time  that  he  was  being 
used  as  such  puppet,  and  willingly  allowed  himself  to 
be  put  to  such  use.  And  he  received  his  reward  by  be- 
ing assigned  to  the  injunction  suit  against  the  Railroad 
Commissioners  and  given  $10,000  from  the  State,  as 
already  mentioned  (pp.  64-75  above). 

Again,  there  is  the  progressive  development  of  the 
crime  that  maybe  seen, -beginning  in  the  language  used 


272 

in  the  citation,  rising  steadily  through  the  newspaper 
articles  of  The  Evening  Post  and  The  Record-Union^ 
culminating  in  the  disbarment  judgment  and  emanating 
in  the  peculiar  self-consciousness  of  crime  shown  in  the 
concurring  opinion  of  Wm.  H.  Beatty,  the  Chief  Jus- 
tice. In  the  citation  all  is  nebulous — the  only  charge 
made  is  of  "  scandalous  and  contemptuous  matters  " 
(see  the  Appendix  p.  5)  without  even  so  much  as  the 
pretense  of  specifying  wherein  the  "  scandal  "  or  "  con- 
tempt "  consists.  In  the  news  article  published  in  The 
Evening  Post  on  the  same  day,  there  come  the  words, 
**  attack  upon  the  Supreme  Court  in  general  and  Jus- 
tice Harrison  in  particular,"  and  the  suggestion  for  a 
"  most  abject  apology"  and  a  declaration  that  "Phil- 
brook  "  is  in  a  "  fix."  In  the  editorial  of  Wm.  H- 
Mills  in  the  same  paper  there  comes  the  next  step  in 
the  words,  "  charging  improper  motives  to  one  of  the 
Justices,  and  threatening  the  Court  by  innuendo  and 
insinuation  "  (see  the  Appendix  p.  9).  Then,  rising 
higher,  comes  the  vituperation  of  The  Record-Union^ 
the  terms  "  outrageous  assault,"  "  the  Philbrook  case," 
"  threatening,"  "threatens,"  "framed  as  threats,"  "  so 
grievous  an  offense,"  "  offender,"  "  punishment,"  and 
next  the  formulation  of  those  editorials  into  the  judg- 
ment, and  then  the  concurring  opinion  of  Wm.  H. 
Beatty,  the  Chief  Justice,  wherein  he  plainly  shows 
that  he  feels  keenly  that  the  act  in  which  he  has  been 
compelled  to  join  is  a  great  and  most  foul  crime. 

Now  put  the  foregoing  particulars  together  and  view 
them  as  a  whole.  Here  is  the  framework  and  outline 
of  the  whole  disbarment  case.  The  disbarment  was 
ordered  and  made  by  The  Southern  Pacific  Company. 
In    choosing   the  particular  "agent  for   the   particular 


273 

crime,  they  chose  Woodson,  brought  him  from  Sacra- 
mento and  assigned  the  task  to  him.  In  carrying  out 
his  task  Woodson  got  what  points  he  could  from  others. 
Some  of  the  points,  such  as  the  striking  out  of  the 
briefs  in  the  case  of  Wai'iier  vs.  Dye  Works,,  were  prob- 
ably given  him  by  Justice  Harrison.  The  fact  that 
the  suspended  administrator  had  been  previously  be- 
friended by  me  in  my  law  office,  and  had  been  appointed 
administrator  on  my  recommendation,  he  probably 
learned  through  some  private  detective  of  The  South- 
ern Pacific  Company.  In  part  at  least  he  was  superin- 
tended and  assisted  by  Wm.  H.  Mills.  He  was  only 
the  agent  of  The  Southern  Pacific  Company;  the  power 
by  which  he  accomplished  his  task  was  the  ownership 
of  the  Justices  b}^  The  Southern  Pacific  Company. 


And  now,  laying  aside  the  question  of  the  extent  to 
which  any  particular  individual  was  used  as  an  agent 
in  the  crime,  let  us  return  to  the  bare  fact  of  the  dis- 
barment judgment  and  of  the  newspaper  articles  pub- 
lished in  advance  in  The  Evening  Post  and  The  Recoi'd- 
Union.  Is  it  not  manifest,  is  it  not  clear  beyond  any 
room  for  doubt,  that  the  same  nii7id  that  produced  those 
newspaper  articles — that  that  same  mind  and  none 
other  produced  the  judgment  of  disbarment?  And 
since  that  mind  was  at  work  on  the  very  day  on  which 
the  disbarment  proceeding  was  begun,  is  it  not  clear 
that  same  mind  produced  the  disbarment  proceeding  ? 
Is  it  not  a  natural  and  manifest  impossibility  that  all 
those  numerous  and  peculiar  features  of  the  disbar- 
ment judgment,  all  of  them  the  work  of  falsehood  and 
dishonesty  and  malevolence,  could  have  been   foreseen 


274 

with  such  accuracy,  tallying  in  every  particular  with 
the  utmost  precision,  and  published  in  advance  in  those 
newspapers,  without  the  whole  having  been  the  work  of 
the  same  mind  ? 

Compare  also  the  motive  and  purpose  manifest  in 
those  newspaper  articles  with  the  motive  and  purpose 
manifest  in  the  disbarment  judgment.  It  is  one  and 
the  same  motive  and  purpose.  Both  in  the  newspaper 
articles  and  in  the  disbarment  judgment,  the  motive 
and  purpose  is  to  make  a  '*  Philbrook  case."  "  The 
Philbrook  contempt  case,  now  before  the  Supreme 
Court  of  this  State,"  "  the  story  of  the  Philbrook  case," 
to  raise  a  false  hue  and  cry  against  the  attorney,  wha 
had  so  well  exposed  Justice  Harrison,  and  thus  to 
divert  attention  from  the  villainy  of  Justice  Harrison. 
That  is  the  very  essence  of  the  trick  called  ignoratia 
elenchi  (described  on  pages  148-154  above),  so  freely 
used  in  the  disbarment  judgment.  And  both  in  the 
newspaper  articles  and  in  the  disbarment,  it  is  the  mani- 
fest purpose  and  motive,  under  cover  of  such  false  and 
wicked  hue  and  cry,  to  whitewash  the  Associate  Justice 
Ralph  C.  Harrison,  to  support  and  give  effect  to  his 
villainy,  to  wreak  in  his  behalf  a  vindictive  vengeance 
upon  the  attorney  because  of  having  exposed  that  vil- 
lainy and  to  compel  the  attorney  to  withdraw  the  charge 
and  declare  it  to  be  false. 

And  why  were  The  Southern  Pacfic  Company  doing 
so  much  for  Justice  Ralph  C.  Harrison  ?  The  answer 
is  in  such  acts  as  the  mutilation  of  the  record  in  Heck- 
man  V,  Swett  (stated  on  pp.  60-62  above)  and  the  false 
decision  of  Hunt  v.  Ward  and  Estate  of  Garcelon 
(stated  on  pp.  62-64  and  64-75  above),  evil  deeds  which 
he  and  the  other  Justices,  his  associates,  were  doing  for 


275  ^ 

The  Southern  Pacific  Company.  It  was  also  The  South- 
ern Pacific  Company,  through  their  a^ent,  E.  S.  Pills - 
bury,  that  gave  him  his  nomination  and,  by  means  of 
that  nomination,  his  place  as  Associate  Justice  in  the 
Court.  He  was  their  protege.  And  the  other  Justices 
also  were,  when  elected,  their  candidates.  This  is 
stated  and  the  evidence  given  on  pages  31-33  and  page 
59  above. 

The  disbarment  is,  therefore,  not  in  truth  a  judgment 
of  the  Supreme  Court  of  California.  On  the  contrary,  it 
is  an  act  which  The  Southern  Pacific  Company  have  com- 
mitted, by  means  of  their  wrongful  possession  of  the 
Court,  and  in  order  to  support  their  evil  ag^nt,  the 
Associate  Justice  Ralph  C.  Harrison.  The  Southern 
Pacific  Company  have  no  lawful  or  just  right  to  be 
the  Supreme  Court  of  California. 


25.     The  Southern  Pacific  Company   Following  Up  and 
Clinching  the  Disbarment. 

A  party  against  whom  a  judgment  of  the  Supreme 
Court  of  California  is  made  is  allowed,  by  the  rules,  to 
file  within  twenty  days  a  petition  for  rehearing. 

It  was  probably  in  part  to  head  off  any  such  relief, 
as  well  as  to  turn  the  force  of  public  opinion,  that  the 
disbarment  was  followed  up  by  other  articles  in  The 
Re  cord' Union  ^  as  follows  : 

On  Jan.  8,  1895,  The  Record-Union  published,  with 
virulent  and  maliciously  exulting  headlines,  all  that 
part  of  the  disbarment  judgment  signed  by  five  Jus- 
tices. This  article  is  shown,  in  its  regular  order,  in  the 
Appendix  p.  34. 


276 

This  was  followed  up  on  Jan.  10,  1895,  ^Y  ^  ^on^  and 
virulent  editorial  in  the  same  paper.  A  copy  of  this 
editorial  is  shown  in  the  Appendix  (pp.  35-36). 

This  was  followed  up  on  Jan.  14,  1895,  ^Y  ^  new^s 
article  in  the  same  paper,  announcing  the  special  con- 
currence of  Wm.  H.  Beatty,  the  Chief  Justice.  A  copy 
of  this  article  is  shown  in  the  Appendix    (pp.  36-39). 

As  will  be  seen  upon  comparison,  The  Record- Union ^ 
in  the  article  last  mentioned,  falsely  quoted  a  part  of 
the  opinion  of  the  Chief  Justice,  and  in  such  a  wa}^  as 
to  betray  clearly  the  purpose  of  bringing  in  "  the  com- 
mittee of  the  Bar  Association  "  to  bolster  up  the  dis- 
barment. In  quoting  the  following  passage  in  the 
opinion  of  the  Chief  Justice  *  *  "  he  had  been  notified 
at  the  opening  of  the  proceedings  by  the  argument  of 
Mr.  Hayne  that  such  was  the  construction  placed  upon 
it  by  the  Bar  Association,"  the  article  in  The  Record- 
Union  changes  the  words  "  Bar  Association  "  to  "  legal 
profession!'^  (Compare  the  language  falsely  quoted 
in  the  editorial,  as  shown  on  p.  38  of  the  Appendix, 
with  the  words  of  the  decision  shown  on  p.  32  of  the 
Appendix.)  Here  plainly  is  a  confession  that  the  pur- 
pose of  supporting  the  disbarment  proceeding  by  the 
trickery  of  a  '^  committee  of  the  Bar  Association  "  was 
to  make  the  public  believe  that  it  was  supported  by  the 
legal  profession — a  purpose  manifest  even  without  such 
an  indication. 

Besides  the  article  last  mentioned  there  was  also 
published  on  Jan.  14,  1895,  another  virulent  editorial 
in  The  Record-Union,  A  copy  of  this  article  is  shown 
in  the  Appendix  (pp.  39,  40). 

No  other  newspaper  published  the  text  of  the  disbar- 


277 

ment  judgment  or  even  of  that  part  filed  Jan.  5,  1895. 
No  other  newspaper  contained  any  such  articles. 

Now,  pray  examine  those  four  articles  published  in 
The  Record-Union  in  January,  1895 — compare  them 
with  the  articles  previously  published  in  the  same 
paper  and  with  the  language  of  the  disbarment  judg- 
ment. Do  they  not  furnish  further  and  overwhelming 
proof  that  the  disbarment  judgment  was  the  work  of 
The  Southern  Pacific  Company  ? 


26.     The  Denial  of  the  Petition  to  Set  Aside  the  Disbarment 
and  be  Allowed  a  Hearing, 

On  January  25,  1895,  twenty  days  after  the  disbar- 
ment, I  filed  in  the  Supreme  Court  an  elaborate  printed 
petition,  in  the  form  of  a  petition  for  a  rehearing  and  a 
motion  for  a  new  trial,  and  on  Feb.  2,  1895,  supported 
it  in  an  oral  address  to  all  the  Justices  except  Harrison. 
The  petition,  though  expressed,  as  in  the  case  of  the 
Lamb  in  the  fable,  "  in  a  tone  as  mild  as  possible"  and 
*'  with  humble  submission,"  set  forth  in  substance  and 
clearly  all  the  injustice  and  illegality  of  the  disbarment 
judgment  above  stated,  but  did  not  mention  that  it  was 
the  work  of  The  Southern  Pacific  Company,  for  of  that 
fact  I  was  at  that  time  ignorant.  On  Feb.  2,  1895,  I  sub- 
mitted the  petition  to  all  the  Justices  except  Harrison, 
and,  among  the  others,  to  the  Associate  Justices  Fred- 
erick W.  Henshaw  and  Jackson  Temple,  who  had  been 
elected  in  November,  1894,  each  for  a  term  of  twelve 
years,  and  had  taken  office  on  Jan.  7,  1895. 

On  Feb.  4,  1895,  two  days  after  the  petition  was  so 
submitted,  the  Justices,  setting  at  naught  the  dictates 
of  natural  justice  and  the  express  provisions  of  the  Con- 


278 

stitution  of  California  (Art.  vi,  Sec.  2)  that  "  In  the  de- 
termination of  causes,  all  decisions  of  the  Court  in  bank 
or  in  departments  shall  be  given  in  writing,  and  the 
grounds  of  the  decision  shall  be  stated,"  and  stating  no 
ground  or  reason  whatever  for  their  action,  entered  an 
order  declaring  the  petition  denied.  That  order  was 
expressed  in  two  words  only,  which  were : 

"  Rehearing  Denied." 


27.  The  Bill  in  the  Legislature.  The  Southern  Pacific  Com- 
pany and  the  Newmans  and  J.  B.  Reinstein  Following 
Up  and  Clinching  the   Disbarment. 

From  the  beginning  of  January,  1895,  ^^  March  16, 
1895,  the  Legislature  of  the  State  was  in  session  in 
Sacramento.  Finding  the  Court  closed  against  me,  I 
sought  relief  from  the  Legislature,  and  to  that  end  pre- 
pared a  bill  and  had  it  introduced  in  both  the  Assembly 
and  the  Senate  on  Feb.  14,  1895.  The  bill  is  shown  on 
p.  41  of  the  Appendix. 

While  this  bill  was  before  the  Legislature  it  was 
fiercely  opposed  by  The  Southern  Pacific  Company, 
through  editorials  in  The  Record-Union  and  by  lobby- 
ists and  by  printed  circulars  purporting  to  be  from  the 
Bar  Association  of  San  Francisco,  a  society  of  which 
E.  R.  Taylor,  one  of  the  Newmans'  attorneys,  was  then 
president,  and  of  which  (as  already  mentioned)  all  the 
Justices  of  the  Supreme  Court  and  the  principal  attor- 
neys of  The  Southern  Pacific  Company  were  members. 
J.  B.  Reinstein,  another  of  the  Newmans'  attorneys, 
was  detected  among  those  secretly  lobbying  against  the 
bill    and  was   publicly  exposed  for  so  doing.       An  em- 


279 

ploye  of  the  Newmans  was  zealously  engaged  in  making 
trades  with  members  of  the  Legislature  for  votes 
against  the  bill.  With  but  a  few  exceptions,  the  law- 
yers in  the  Legislature  refused  to  support  the  bill, 
some  feigning  objections  to  it  and  others  speaking  pri- 
vately in  favor  of  it,  and  frankly  admitted  that  their 
refusal  to  support  it  openly  was  from  fear  of  being 
persecuted  and  ruined  if  they  should  be  known  to  have 
supported  it.  In  the  Assembly  three  attorneys  (one  of 
them  the  chairman  of  the  judiciary  committee)  actively 
fought  against  the  bill,  and  obtained  an  adverse  report 
from  the  judiciary  committee.  By  secret  influences, 
the  Senate  was  induced  to  refer  the  bill  a  second  time 
to  its  judiciary  committee,  although  that  committee  had 
reported  the  bill  favorably.  The  press  of  the  State, 
was,  however,  in  general  friendly  to  the  bill.  Against 
all  opposition  the  bill  was  passed  by  the  Senate  on 
March  the  7th,  was  then  transferred  to  the  Assembly, 
was  passed  by  the  Assembly  on  March  the  13th,  and  a 
reconsideration  defeated  on  March  the  14th.  This  was 
so  late  in  the  session  that  the  bill  could  not  become  a 
law  without  the  approval  of  the  Governor.  The  Gov- 
ernor (James  H.  Budd)  had  been  elected  in  November, 
1894;  his  candidacy  had  been  supported  by  The  Record- 
Umon^  though  it  professed  to  be  an  organ  of  the  oppo- 
site party;  one  of  his  first  official  acts  had  been  to 
appoint  the  editor  of  a  newspaper  organ  of  The  Southern 
Pacific  Company  a  State  Harbor  Commissioner  at  San 
Francisco,  and  he  (the  Governor)  was  the  personal 
friend  of  J.  B.  Reinstein.  He  refused  to  approve  the 
bill,  but  assigned  no  reason. 

The  contest  made  by  The  Southern  Pacific  Company 
to  defeat  the  bill,  both  while  it  was  before  the  Legisla- 


28o 


ture  and  while  it  was  in  the  hands  of  the  Governor,  is 
shown  by  the  editorials  which  were  then  published  in 
The  Record-Union.  While  the  bill  was  before  the  Leg- 
islature, those  editorials  were  carefully  timed  so  as  to 
appear  when  the  bill  was  either  just  coming  to  a  vote 
or  in  some  critical  stage — a  fact  that  can  be  readily 
verified  by  comparing  the  days  on  which  the  editorials 
appeared,  with  the  published  journals — and  every  time 
such  an  editorial  appeared  the  paper  was  placed  upon 
the  desk  of  every  member  of  the  Legislature.  The 
editorials  are  shown  on  pages   41-50  of  the  Appendix. 

An  example  of  the  lies  in  those  editorials — for  they 
reek  with  lies  from  beginning  to  end — may  be  seen  in 
that  of  March  the  23rd,  asking  the  Governor  to  refuse 
his  approval,  and  saying  that  the  "  local  contempor- 
aries "  of  The  Record-Union  had  opposed  the  bill  in 
the  Legislature.  That  statement  is  an  utter  falsehood. 
Except  The  Re coi^d- Union ^  no  newspaper  published  in 
Sacramento  opposed  the  bill. 

An  example  of  the  unscrupulous  trickeries  in  those 
editorials  may  be  seen  in  the  efforts  to  invoke  against 
the  attorney  in  whose  destruction  The  Southern  Pacific 
Company  were  engag^ed,  the  unpopularity  of  the  an- 
archists, and  particularly  the  odium  held  against  them 
because  of  the  murders  at  the  Haymarket  in  Chicago. 
An  example  of  that  effort  may  be  seen  in  the  editorial 
published  on  March  the  2nd  (Appendix  p.  43).  A  similar 
effort  to  turn  against  their  victim  the  unpopularity  of 
''radical  socialists  and  chronic  agitators"  was  made  in 
the  editorial  published  on  January  the  14th  (Id.  p,  39). 
In  a  less  pronounced  form  the  same  effort  was  made 
before  the  disbarment  in  the  editorial  of  December  the 
13th  and  that  of  December  the  20th.     (Id.  pp.    14,    15^ 


28l 

16.)  And  it  is  also  to  be  seen  in  the  judgment  of  dis- 
barment (Id.  pp.  27,  31).  Here  were  The  Southern 
Pacific  Company  engaged  in  practices  better  exempli- 
fying the  motto  "Down  with  the  law !  "  than  what  was 
done  by  the  anarchists  of  Chicago  and  of  greater  cruelty 
and  more  basely  criminal,  and  trying  to  turn  the  un- 
popularity of  the  lesser  law  breakers  against  the  vic- 
tim of  their  own  crime.     See  p.  112  above. 

How  utterly  false  was  all  that  opposition  to  the  bill, 
as  disclosed  in  those  editorials,  may  be  seen  by  com- 
paring their  utterances,  with  what  (as  shown  on  pages 
193-4  and  197-8  above)  has  always  been  the  law 
throughout  the  United  States  and  has  been  the  law  of 
England  for  the  last  four  hundred. years. 

Take  now  the  editorials  published  in  The  Record- 
Union  against  the  bill.  Compare  them  with  the  de- 
mand for  the  disbarment  and  the  defense  of  it  which 
had  been  previously  carried  on  in  the  same  paper.  Do- 
they  not  furnish  further  proof  that  the  disbarment  was 
the  work  of  The  Southern  Pacific  Company  ? 


28.  The  False  Report  of  the  Disbarment  Case.~The  fluti- 
lation  of  the  Record. — The  Suppression  of  the  Proof  of 
Justice  Ralph  C.  Harrison's  Villainy. — The  Libel  Upon 
the  Attorney,  Published  in  the  Name  of  the  State. — 
The  Justices  Still  Following  The  Record-Union. 

(I)     The  False  Report  of  the  Case. 

In  Blackstone's  Commentaries,  after  the  statement 
that  the  decisions  of  the  courts  are  the  evidence  of  what 
is  the  law,  it  is  said  (Vol.  i,  p.  71)  : 


282 


"The  decisions  therefore  of  courts  are  held  in 
highest  regard,  and  are  not  only  preserved  as 
authentic  records  in  the  treasuries  of  the  several 
courts,  but  are  handed  out  to  public  view  in  the 
numerous  volumes  of  reports^  which  furnish  the 
lawyer's  library.  These  reports  are  histories  of 
the  several  cases,  with  a  short  summary  of  the 
proceedings,  which  are  preserved  at  large  in  the 
record,  the  arguments  of  both  sides  and  the  reason 
the  court  gave  for  its  judgment." 

A  statute  of  California  (Political  Code,  Sees.  410, 
767-782)  provides  for  the  publication  of  the  reports  of 
the  decisions  of  the  Supreme  Court,  and  for  their  free 
distribution  to  various  officers  in  every  count}^  of  the 
State,  to  the  Federal  Judges  within  the  State,  to  the 
Congressional  Library  at  Washington,  and  to  every 
State  in  the  Union,  and  also  for  their  being  put  upon 
sale  to  the  public  generally.  The  statute  also  provides 
minutely  (Sees.  771-775)  that  the  making  up  of  the 
reports  shall  be  supervised  by  the  Justices  of  the  Su- 
preme Court,  and  that  their  directions  shall  be  implic- 
itly followed,  and  among  other  things  says  (Sec.  773): 

"Each  report  shall  be  made  in  manner  and  form 
as  the  Court  may  direct." 

After  the  bill  which  had  been  passed  by  the  Legisla- 
ture had  been  defeated  as  above  stated,  the  Justices  of 
the  Supreme  Court  proceeded,  under  the  power  given 
them  by  the  statute,  to  make  up,  without  even  the  pre- 
tense of  notice  or  a  hearing,  an  official  report  of  the 
disbarment  case,  and  in  July  1895,  caused  the  report  so 
made  up  to  be  published  in  Volume  105  of  the  Califor- 
nia Reports,  there  to  stand  permanently  before  the 
world,  and  to  be  distributed  by  the  State,  and  through- 


283 

out  the  nation,  as  the  official  and  only  authentic  exhib- 
ition of  the  case.  In  that  report  they  published  ^'/^/^//Z, 
abating  not  so  much  as  a  word,  the  decision  of  disbar- 
ment, both  the  part  signed  by  five  Justices  and  that  ex- 
pressing the  concurrence  of  Wm.  H.  Beatty,  the  Chief 
Justice,  and  also  the  citation,  which  constituted  their 
complaint  against  their  victim,  and  utterly  suppressed 
every  word  of  their  victini^s  answer  to  the  citation^  and 
every  word  said  or  written  by  him  in  his  defense. 

Now,  pray  consider  the  motive  for  that  outrageously 
false,  wicked  and  dastardly  report  of  the  case.  The 
answer  to  the  citation,  all  of  which  was  so  wickedly 
suppressed,  consisted  of  nearly  forty  type-written  pages 
of  the  size  known  as  legal  cap,  and  was  a  very  careful 
and  full  exhibition  of  the  facts,  in  the  form  of  actual 
quotations  of  the  evidence  in  the  record,  all  showing 
fully  and  without  contradiction  the  outrageous  villainy 
of  Justice  Ralph  C.  Harrison  discussed  in  the  brief. 
Among  the  evidence  there  set  out  there  was,  for  in- 
stance, the  sworn  admission  of  one  of  the  Newmans, 
that  it  was  upon  Ralph  C.  Harrison's  advice  that  he 
withheld  from  his  deceased  partner's  family  their 
means  of  livelihood,  and  that  Ralph  C.  Harrison  was  at 
the  time  their  (the  Newmans)  attorney.  If  that  an- 
swer to  the  citation  had  been  published^  it  would  have 
given  to  the  zvo  fid  the  proof  of  Justice  Ralph  C  Har- 
rison'^ s  villainy  and  of  the  outrage  and  wickedness  of  the 
disbarment;  a7td  it  was  for  that  reason  that  it  was  sup- 
pressed from  the  report. 

The  citation  and  the  answer  to  the  citation  are  of 
course  correlative  and  co-ordinate  parts  of  the  record. 
The  citation  was  published  in  the  report ;  the  answer 
to  the  citation  was   omitted  from   the  report.     Such  a 


284 

report  of  the  case  was  therefore  a  mutilation  of  the 
record,  an  act  the  same  in  principle  as  the  mutilation  of 
the  record  of  Heckman  v.  Swett^  stated  on  pages  60-62 
above. 

The  judgment  of  disbarment  several  times  mentions 
the  answer  to  the  citation,  and  always  in  hostile  and 
disparaging  terms.  It  says,  for  instance  (in  the  part 
signed  by  five  Justices):  "The  respondent  Philbrook 
filed  a  written  answer  to  the  citation,"  and  that  *'  in 
his  written  answer  he  boldly  contended,"  etc.  (See  the 
Appendix,  p.  23).  And  in  the  part  written  specially  by 
Wm.  H.  Beatty,  the  Chief  Justice,  it  is  said,  *  **.  "  as 
to  the  propriety  of  modifying  his  written  answer  and  of 
introducing  into  that  permanent  record,"  etc.  (Id.  p.  32). 
In  the  ofiicial  report  the  judgment  of  disbarment  was 
published  in  full,  and  so,  too,  was  the  citation ;  the 
"  written  answer  to  the  citation"  has  been  omitted  and 
utterly  suppressed. 

Here,  again  is  the  proof  that  the  purpose  of  the  dis- 
barment proceeding  was  to  whitewash  Justice  Ralph  C. 
Harrison  and  to  shield  and  support  him  in  his  villainy. 


(2.)    The  False  and  Libelous  Report  of  the  Case  Was  Also  the 
Work  of  The  Southern  Pacific  Company. 

It  is  a  noteworthy  fact  that  the  false  and  libelous 
report  of  the  case  just  stated  was  also  set  on  foot  by  The 
Southern  Pacific  Company.  The  Southern  Pacific 
Company  published  the  citation  in  full  on  Dec.  7,  1894, 
in  77/<?  ^27^/^z>2^/(9^/ (see  the  Appendix,  pp.  6-8).  They 
also  published  the  disbarment  judgment  in  The  Record- 
Union  on  Jan.  the  8th  and  Jan.  the  14th,  1895  (see  the 


285 

Appendix,  pp.  34,  36-39).  In  the  editorial  published  on 
Dec.  the  20th  in  The  Record  Union^  they  also  men- 
tioned the  answer  to  the  citation.  They  there  said, 
^'  his  elaborate  written  answer  in  which  he  sets  up  all 
he  has  to  plead  in  his  own  behalf"  (see  the  Appendix, 
p.  17)  and  "he  presented  in  print  every  particle  of  tes- 
timony taken  or  that  can  be  taken  in  the  case"  (Id.) 
They  7iever  published  so  much  as  a  word  of  the  answer 
to  the  citation.  And  in  this  the  motive  of  The  South- 
ern Pacific  Company  was  precisely  the  same  as  that 
with  which  a  like  false  report  of  the  case  was  published 
in  The  California  Reports,  as  above  stated,  viz.,  to 
whitewash  Justice  Ralph  C.  Harrison,  and  to  shield 
and  support  him  in  his  villainy. 


(3.)     The  Outrage  Committed  by  So  Reporting  the  Case. 

And  pray  consider  what  has  been  done  to  the  victim 
of  the  crime  by  so  outrageously  false  and  dastardly  a 
report  of  the  case. 

In  Kent's  Commentaries  it  is  said  (Vol.  2,  p.  16): 

"As  a  part  of  the  right  of  personal  security, 
the  preservation  of  every  person's  good  name  from 
the  vile  arts  of  detraction  and  slander  is  justly 
included." 

Blackstone  says  (Comm.,  Vol.  i,  134): 

"  The  security  of  his  reputation  or  good  name 
from  the  arts  of  detraction  and  slander,  are  rights 
to  which  every  man  is  entitled,  by  reason  and 
natural  justice  ;  since,  without  these,  it  is  impos- 
sible to  have  the  perfect  enjoyment  of  any  other 
advantage  or  right." 


286 

In  B Olivier' s  Institutes  (§  2234)  it  is  said: 

"  In  selecting  those  among  his  fellow  creatures 
in  whom  either  to  repose  his  interest  or  his  affec- 
tions, every  one  will  naturally  discard  all  whom  he 
suspects  or  believes  to  be  unworthy  of  trust.  The 
acquaintance  which  each  man  has  with  the  charac- 
ters of  other  men  can  be  but  limited,  and,  most 
usually,  he  derives  his  information  in  this  partic- 
ular from  others.  Should  their  report  of  any 
individual,  however  unfounded  in  truth,  be  unfa- 
vorable, though  it  may  not  operate  conviction  on 
his  mind,  it  will  engender  distrust ;  for  it  can 
hardly  be  imagined  that  it  is  wholly  a  malicious 
falsehood.  Men  are  not  inclined  to  take  the 
trouble  to  ascertain  the  truth  or  falsehood  of  state- 
ments made  in  relation  to  others,  but  when  a  man 
is  so  disposed  he  has  not,  perhaps,  an  opportunity 
of  examining  the  matter,  nor  is  he  able  to  dis- 
prove the  charge  to  his  own  satisfaction,  and  trace 
its  falsehood  through  all  the  varieties  of  knavery 
that  produced  it ;  so  that  if  the  party  accused  be  in 
possession  of  his  confidence  or  esteem,  or  become 
at  any  time  a  candidate  for  either,  he  will  naturally 
reject  his  claim  in  one  case  and  renounce  him  in 
the  other.  Hence  it  is  that  a  charge  or  accusation 
which  imports  that  a  man  is  unfit  for  society,  for 
his  profession  or  his  trade,  "^  *  or  for  his  situa- 
tion of  public  trust,  is  likely  to  raise  a  suspicion  or 
belief  that  he  is  really  incapacitated,  and  thereby  to 
cut  off  or  diminish  his  means  of  attaining  to,  or, 
if  already  in  possession,  is  likely  to  deprive  him  of 
the  enjoyment  of  either,  and  is  therefore  injurious." 

These  quotations  refer  to  injuries  to  one's  good  name 
when  committed  by  a  private  person  and  in  such  a  way 
as  to  last  only  for  a  time  more  or  less  brief.  But  in  the 
report  of  the  disbarment  case  here  mentioned  its  authors 
have  caused  theii  victim  to  be  published  with  outrage- 


287 

ous  defamation  and  calumny  by  the  State  of  California 
and  in  permanent  form,  to  be  read  and  referred  to  as  an 
authority  in  every  part  of  the  nation  and  in  foreign 
countries  as  well,  and  for  all  time. 


29.  A  Second  Deliberate  and  Wicked  Reaffirmance  of  the 
Disbarment — A  Second  Publication  of  the  Libel  in  the 
Reports. 

On  pages  277-278  above  I  have  stated  the  fact  of 
my  submitting  to  the  Supreme  Court  on  Feb.  2,  1895, 
a  printed  petition  asking  that  the  judgment  of  disbar- 
ment be  set  aside,  and  that  two  days  later  it  was  an- 
swered by  the  Justices  in  the  two  words,  "  Rehearing 
denied. '^ 

On  Feb.  9,  1895,  I  called  on  Wm.  H.  Beatty,  the 
Chief  Justice,  at  his  official  chambers  in  San  Francisco, 
and  earnestly  protested  against  such  a  disposition  of 
that  petition,  reminded  him  that  the  Constitution  of  the 
State,  as  well  as  natural  justice,  required  that  if  the 
petition  was  to  be  denied,  the  reason-s  for  the  denial 
should  be  stated,  and  earnestly  requested  that  the  petition 
be  given  a  decision  stating  the  grounds  upon  which  it 
was  made.  At  the  same  time  I  stated  to  him  that  the  rea- 
son why  I  made  the  request  was,  that  any  such  decision 
must  needs  show  that  the  disbarment  was  unlawful  and 
unjust.  To  this  appeal  Wm.  H.  Beatty,  the  Chief 
Justice,  then  replied  that  he  and  his  associates,  the 
other  Justices,  looked  upon  the  petition  as  still  pending 
before  them  as  a  motion  for  a  new  trial,  and  that  they 
would  presently  decide  it  as  a  motion  for  a  new  trial, 
and  would  then  give  the  reasons  for  their  decision. 


288 

Time  passed  and  the  promise  was  not  kept.  Mean- 
while the  bill  was  passed  by  the  Legislature  and  de- 
feated in  the  hands  of  the  Governor  as  above  stated.  I 
thereupon  repeatedly  called  upon  Wm.  H.  Beatty,  the 
Chief  Justice,  and  reminded  him  of  his  declaration  that 
the  petition  was  still  pending  as  a  motion  for  a  new 
trial,  and  of  his  promise  that  it  should  be  decided  as 
such  and  that  the  reasons  of  the  decision  should  be 
given,  and  earnestly  requested  such  a  decision.  The 
reply  was  a  decision  filed  July  5,  1895 — a  decision  hud- 
dled up  in  conclave  and  announced  anonymously  as 
having  been  made  by  ''  The  Court,"  so  as  not  to  reveal 
by  what  particular  person  it  was  drawn  up.  That  de- 
cision referred  to  the  disbarment  with  the  general  ex- 
pression of  approval,  repj'oached  me  for  insisting  that 
the  petition  was  still  pending^  and  said  :  *'  It  would  be 
preposterous  to  expect  that  a  motion  for  a  new  trial 
would  prevail,  after  an  application  for  a  rehearing  has 
been  denied,  upon  a  consideration  of  the  same  points 
which  are  presented  by  the  motion  for  a  new  trial,"  and 
again  refused  to  state  any  reason  why  the  petition  was 
denied.  In  that  decision  Wm.  H.  Beatty,  with  his 
characteristic  perfidy,  concurred. 

In  the  decision  filed  July  5,  1895,  as  just  stated,  the 
Justices  gave  reasons  for  their  assertion  that  no  motion 
for  new  trial  was  pending.  They  thus  showed  that 
they  were  well  aware  that  it  was  due  from  them  to 
assign  some  reason  or  ground  for  a  decision.  Why, 
then,  did  they  persist — why  have  they  ever  since  per- 
sisted— in  refusing  to  assign  any  ground  or  reason  for 
denying  the  petition  submitted  to  them  on  February  2, 
1895,  with  an  oral  argument  in  its  support  ? 

The  reason  is  that  that  petition  was  unanswerable, 


289 

and  they  all  knew  it.  In  denying  that  petition,  they 
all  joined  again  in  the  crime  of  the  disbarment.  They 
again  deliberately,  wilfully,  intentionally,  dishonestly 
and  corruptly  misused  the  offices  of  Justices  of  the 
Supreme  Court  of  California,  to  deny  justice,  to  shield 
and  uphold  villainy  and  to  perpetrate  further  villainy, 
cruel  oppression  and  outrage  and  a  great  crime. 

And  upon  that  decision  of  July  5,  1895,  ^Y  which 
they  thus  rejected  again  my  petition  for  relief  from  the 
disbarment,  the  Justices  made  in  volume  108  of  the 
California  Reports,  another  report  of  the  case,  again 
calling  attention  to  the  disbarment  and  referring  with 
approval  to  the  false  and  wicked  report  of  it  which 
they  had  previously  made  as  already  stated,  and  setting 
out  a  copy  of  their  decision  of  July  5,  1895,  just  men- 
tioned. 


III. 

The  Disposition  of  the  Appeal  From  the  Judg- 
ment and  of  the  Appeal  From  the 
Probate  Court. 


1.     The  Appeal  From  the  Judgment. 

As  above  stated  (pp.  54-5  above)  a  separate  appeal 
had  been  taken  from  the  judgment  give'n  by  the  Su- 
perior Court  for  the  two  Newmans.  That  appeal  is  the 
case  No.  15,731  on  the  Supreme  Court  Register,  and  in 
it  the  administrator  asked  for  a  reversal  of  the  judg- 


290 

ment  on  what  appeared  in  the  complaint  and  answer 
alone,  irrespective  of  the  evidence.  After  the  disbar- 
ment of  the  attorney,  the  Justices  McFarland,  Temple 
and  Henshaw,  on  February  6,  1895,  ^.fter  denying  a 
hearing  of  the  case,  entered  an  order  falsely  declaring 
it  to  have  been  submitted  to  them  as  Department  Two 
of  the  Supreme  Court.  One  of  the  Supreme  Court 
Commissioners  then  prepared  for  them  a  decision  of  the 
case,  ruling  that,  because  the  Newmans  in  their  answer 
admitted  the  estate  of  their  deceased  partner  to  be  en- 
titled to  a  j  udgment  against  them  for  $662.40,  there- 
fore the  judgment  should  have  been  against  the  New- 
mans for  that  sum,  irrespective  of  the  evidence,  and 
that  the  Newmans  should  pay  the  costs  of  the  appeal, 
and  in  all  other  respects  ruling  in  favor  of  the  two 
Newmans.  This  decision  was  placed  entirely  upon 
technical  grounds,  none  of  them  touching  or  pretend- 
ing to  touch  the  merits  of  the  case.  On  June  29,  1895, 
the  three  Justices  last  mentioned  adopted  that  decision 
as  the  decision  of  Department  Two  of  the  Court,  but 
first  struck  out  the  express  direction  that  the  Newmans 
should  pay  the  costs.  The  striking  out  of  that  express 
direction  did  not,  however,  affect  the  result,  for,  by  vir- 
tue of  one  of  the  rules  of  the  Supreme  Court,  the  New- 
mans were  still  bound  to  pay  the  costs  of  the  appeal. 

The  two  Newmans  thereupon,  by  Reinstein  &  Eisner 
and  E.  R.  Taylor  as  their  attorneys,  petitioned  the 
Court,  and  urged  that  the  estate  of  their  deceased 
partner  was  not  entitled  to  anything  from  them,  not 
even  the  $662.40,  and  that  even  if  it  was  entitled  to  a 
judgment  for  the  $662.40,  it  should  be  saddled  with  the 
entire  costs  of  the  appeal.  The  Court  in  bank,  all  the 
Justices  (Ralph  C.  Harrison  included)  apparently  tak- 


291 

ing  part  in  the  decision,  responded  without  granting 
the  administrator  any  hearing,  by  ordering  the  judg- 
ment of  the  Department  Two  changed  so  as  to  contain 
an  express  direction  that  the  estate  of  the  deceased 
partner  should  not  recover  the  costs  of  the  appeal,  but 
should  pay  the  costs  of  the  two  Newmans. 

The  administrator  (Mr.  Rankin)  thereupon  filed  a 
petition  protesting  against  the  action  of  the 
Justices  last  stated,  on  two  grounds,  viz.,  i:  That  the 
j  udgment  of  the  Department  Two  was,  under  the  stand- 
ing rule  of  the  Court,  that  the  Newmans  should  pay 
the  costs  of  the  appeal,  and  that  the  Constitution  of  the 
State  expressly  declares  that  the  judgment  of  a  de- 
partment of  the  Supreme  Court  shall  be  final  unless  a 
hearing  in  bank  is  ordered  within  thirty  days  (and  such 
is  the  express  provision  of  Article  VI,  Section  2,  of  the 
Constitution);  and  2:  The  injustice  of  requiring  the 
deceased  partner's  estate  to  pay  all  the  costs  of  the  ap- 
peal, after  deciding  that  the  appeal  was  just  and  that 
the  Newmans  had  been  wrong  in  exacting  the  judg- 
ment they  had  obtained  in  the  Superior  Court.  The 
Justices  immediately  and  unanimously  denied  that  pe- 
tition, but  stated  no  ground  for  so  doing. 

The  Justices  then  caused  their  decision  to  be  falsely 
reported  in  Vol.  107  of  the  California  Reports,  so  as  to 
make  it  falsely  appear  that  the  express  direction  that 
the  deceased  partner's  estate  should  pay  all  the  costs 
of  the  appeal,  even  the  costs  of  the  two  Newmans,  had 
been  given  in  the  judgment  of  the  Department  Two. 

This  decision  of  the  appeal  from  the  judgment  is 
further  referred  to  under  a  subsequent  head.  But  at 
this  place  attention  is  invited  to  four  things,  namely: 


292 

1.  The  denial  to  the  administrator  of  the  fundament- 
al right  to  a  hearing  of  the  case. 

2.  The  manifest  outrage  of  compelling  the  deceased 
partner's  estate  to  pay  all  the  costs  of  the  appeal,  even 
the  costs  of  the  two  Newmans,  although  deciding  that 
the  appeal  was  just,  that  it  was  necessary  to  obtain 
that  to  which  the  estate  was  entitled  and  which  was 
wrongfully  withheld  from  it  by  the  two  Newmans. 

3.  The  deliberate  violation  of  an  express  provision 
of  the  Constitution  making  a  judgment  of  a  Depart- 
ment of  the  Supreme  Court  final  unless  a  hearing  in 
bank  is  ordered  within  thirty  days — a  violation  of  the 
Constitution  in  favor  of  the  two  Newmans. 

4.  The  false  report  of  the  case,  falsely  pretending 
that  no  such  violation  of  the  Constitution  had  been 
committed. 


2.    The  Disposition  of  the  Appeal  of  Mrs.  Levinson  and  Her 
Daughters  from  the  Probate  Court. 

The  appeal  here  referred  to  is  that  mentioned  on 
pages  55-59  above.  And  on  pp.  231-232  above,  it  is 
pointed  out  that  in  the  disbarment  of  the  attorney  its 
authors  inserted  a  charge,  one  of  the  six  new  accusa- 
tions there  set  out,  taking  sides  against  Mrs.  Levinson 
and  her  daughters  concerning  that  case,  and  thereby 
wantonly  laying  upon  the  Court  a  pledge  to  decide  the 
case  against  them. 

The  disbarment  of  the  attorney  left  Mrs.  Levinson 
and  her  daughters  without  an  attorney,  and  the  Court 
bad  been  made  to  express  in  advance  such  denunciation 


^93 

of  their  cause  that  it  would  have  been  idle  for  them  to 
seek   to  employ  another  even  if  they  had  been  finan- 
cially able  to  do  so.     The  Court  had  denied  them  the 
right  to  employ  an  attorney  in  the  case.     The  Court 
then  proceeded  to  deny  to  them  a  hearing  of  the  case. 
To  that  end  and  with  that  effect,  Thomas  B.  McFarland, 
Jackson  Temple  and   Frederick  W.  Henshaw,  as  the 
Justices,  constituting  Department  Two  of  the  Court, 
made  on  April  i,  1895,  an  order  falsely  declaring  the 
case  to  have  been  submitted  to  them  for  decision  with- 
out argument.    On  August  6, 1895,  ^^^Y  ^^^^  ^  decision 
of  the  case  against  Mrs.  Levinson  and   her  daughters 
the  appellants,  i.  e.^  in  favor  of  the  side  they  and  their 
associates  had  so  pledged  themselves  to  in  the  decision 
disbarring  the  attorney.     But  the  case  was  so   strong 
that,  though  they  had  thus  pledged  the  Court  to  decide 
against  the  widow  and  her  daughters,  though  they  had 
prevented  them  from  having  the  case  argued,  they  were 
forced  to  say  that  their  decision  in  favor  of  those  whom 
in  advance  and  without  evidence  they  had  declared  to 
be   "  certain  reputable   lawyers,"  was  made  '^  without 
signifying  approval   of  all   the  methods  employed  by 
them,''  etc.     They  also  modified  the  judgment  of  the 
Probate  Court  in  some  of  its  outrageous  features.    They 
struck  out  the  item  of  $240  mentioned  on  p.  57  above  ^ 
reduced  the  witness  fee  of  $50,  also  there  mentioned,  to 
$2.00,  and   struck   out   the   commissions    allowed   the 
suspended   administrator,  and  directed  that  he  might 
apply  for  commissions  at  the  closing  of  the  administra- 
tion of  the  estate.     In  all  other  respects  they  affirmed 
the  judgment.     The  aged  widow  filed  a  petition   pro- 
testing against  the  decision,  urging  the  justice  of  her 
case,  pointing  out  that,  in  the  decision  disbarring  her 


294 

attorney,  the  Court  had  been  pledged  in  advance  to 
decide  against  her  and  that  she  had  been  wrongfully 
deprived  of  opportunity  to  have  her  case  argued  and 
deprived  of  the  help  of  legal  counsel,  giving  an  outline 
of  the  treachery  and  wickedness  of  "Ralph  C.  Harrison 
against  her,  and  asking  that  the  disbarment  of  her 
attorney  be  withdrawn  and  her  cause  heard  by  the  Court 
in  bank.  The  Justices  denied  her  petition  without 
stating  any  ground,  and  ordered  it  struck  from  the 
files. 

Here  was  another  judgment  of  the  Supreme  Court  of 
California,  made  against  Mrs.  Levinson  and  her  daugh- 
ters, after  its  authors  had  pledged  themselves  in 
advance  so  to  decide,  after  denying  their  victims,  the 
three  defenseless  women,  the  right  to  employ  an  attor- 
ney, and  after  denying  them  the  fundamental  right  to  a 
hearing  of  the  case. 

The  decision  may  be  seen  reported  by  its  authors  as 
Estate  of  Levinson^  io8  Cal.,  450. 


No  Pains  to   Conceal   the   Corrupt  Intention    to   Decide  the 
Remaining  Case  for  the  Two  Newmans. 

Let  it  be  borne  in  mind  that  the  decision  last  men- 
tioned was  made  on  August  6,  1895,  and  that  the  main 
case  against  the  two  Newmans,  the  appeal  from  the 
order  of  the  Superior  Court  denying  a  new  trial  of  the 
accounting  suit,  was  still  admittedly  pending  in  the 
Supreme  Court.  Now,  in  the  case  in  which  that  deci- 
sion was  made,  one  of  the  acts  of  misconduct  of  the 
^*  certain  reputable  lawyers"  which  was  urged  by  Mrs. 
Levinson  and  her  daughters  as  evidence  of  their  infi- 


295 

delity  was  that  on  the  trial  in  the  Superior  Court  of  the 
suit  against  the  two  Newmans,  those  *'  certain  reputable 
lawyers,"  instead  of  assisting  to  present  the  case,  had 
tried  to  force  a  compromise  with  the  two  Newmans  for 
the  administrator's  costs  and  attorney's  fees.  In  the 
decision  upholding  the  "certain  reputable  lawyers," 
the  Justices  used  the  following  language,  which  may  be 
seen  in  Vol.  io8  of  the  California  Reports  at  p.  458  : 

*  *  *  *  while  it  pretty  clearly  appears  *  *  that  they 
*  *  [the  "certain  reputable  lawyers"]  then  entertained 
small  hope  of  ultimate  success,  and  so  were  insistent  (as  was 
the  administrator  [the  administrator  presently  suspended  for 
his  misconduct  and  forced  to  resign])  on  a  proposed  compro- 
mise, which,  if  effected,  would  have  given  the  estate  little, 
if  anything,  more  than  the  expenses  of  the  action,  yet  it  does 
not  appear  but  that  the  course  they  recommended  comported 
with  the  proper  discharge  of  professional  obligations  ;  in  the 
light  of  the  event  it  seems  that  it  would  have  been  most  to 
the  interest  of  the  estate." 

Of  this  language  the  words  ''  ultimate  success  "  and 
"  light  of  the  event "  refer  to  the  final  outcome  of  the 
suit  on  behalf  of  the  deceased  co-partner's  estate  against 
the  two  Newmans,  the  surviving  partners.  The  words 
"  ultimate  success  "  and  "  light  of  the  event "  could 
not  have  been  used  truthfully  without  meaning  the 
final  determination  of  the  suit  to  be  given  by  the 
Supreme  Court.  Whether  they  were  in  fact  used  with 
that  meaning,  or  whether  they  referred  only  to  the 
decision  of  the  lower  Court,  still  the  language  was  a 
deliberate  and  unmistakable  assertion  that  the  final 
determination  by  the  Supreme  Court  of  the  suit  against 
the  two  Newmans  was  to  be  such  that  "  it  would  have 
been  most  to  the  interest  of  the  estate  "  to  have  accepted 
the  "  proposed  compromise  which,  if  eflfected,  would 
have  given  the  estate  little  if  anything  more  than  the 


296 

expenses  of  the  action."  Mrs.  Levinson,  in  her  peti- 
tion last  referred  to,  earnestly  protested  against  the 
language  so  used,  on  the  ground  that  it  was  such  as  vir- 
tually to  pledge  the  Court  in  advance  to  decide  against 
her  interests  and  in  favor  of  the  two  Newmans  in  a 
suit,  which,  though  already  in  the  Supreme  Court,  had 
not  been  given  even  the  pretense  of  a  hearing.  But 
her  protest  was  vain. 


IV. 

other  Facts  Relating  to  the  Main  Case  and  Oc- 
curring  Prior  to  the  Final  Decision. 


The  Briefs. — The  Appellant's  Brief. — The  Newmans  and 
Their  Attorneys  Openly  and  Insolently  Claiming  the 
Disbarment  As  Entitling  Them  to  a  Decision  of  the  Case 
in  Their  Favor. 


We  now  return  to  the  main  case,  the  appeal  from  the 
order  of  the  Superior  Court  refusing  to  set  aside  the 
decision  ordering  judgment  for  the  two  Newmans,  the 
surviving  partners.  This  is  the  case  mentioned  on  page 
55  above.  It  is  the  entire  case  of  the  estate  of  the  de- 
ceased partner  against  the  two  Newmans,  the  surviving 
partners.  The  printed  record  of  the  case  on  file  in  the 
Supreme  Court  shows  all  the  facts  clearly  and  without 
contradiction. 


297 

(I.)     The  Appellant's  Brief. 

On  the  same  day  (Jan.  5,  1895)  that  the  attorney 
was  disbarred,  as  above  stated,  the  Justices  of  the  Su- 
preme Court  unanimously  ordered  the  entire  brief 
referred  to  in  the  disbarment  judgment  to  be  struck 
from  the  files  of  the  court.  This  of  course  left  the 
appellant,  the  administrator,  without  any  brief  what- 
ever, to  show  the  grounds  of  the  appeal.  His  attorney 
had  been  disbarred,  his  profession  taken  away,  and  he 
deprived  of  his  very  means  of  livelihood  and  avowedly 
as  a  ''  punishment,"  a  "  penalty,"  for  showing  in  his 
brief  and  on  behalf  of  his  clients  that  the  transfer  by 
the  former  executor  to  the  two  Newmans  was  fraudu- 
lent. The  Judge  who  had  decided  the  case  for  the  two 
Newmans  in  the  Superior  Court  had  there  asserted  that 
that  was  the  only  ground  of  the  case.  (See  pp.  3-4  of 
the  Appendix).  The  Newmans'  attorneys,  E.  R.  Tay- 
lor and  Reinstein  &  Eisner,  had  made  the  same 
assertion  in  the  Superior  Court  and  also  in  the  Supreme 
Court  in  their  brief  filed  against  the  appeal  which  had 
been  taken  from  the  judgment.  The  Justices,  the 
pretended  authors  of  the  disbarment  judgment,  had 
therefore  in  fact  not  only  deprived  the  adminis- 
trator and  the  three  defenseless  women  represented 
by  him,  of  an  attorney,  but  had  forbidden  any 
attorney  from  attempting  to  represent  the  estate 
of  the  deceased  partner  in  the  suit,  and  menaced 
the  plaintiff  himself  with  "  punishment  "  if  he  should 
attempt — even  if  he  had  been  capable — to  argue 
the  case  himself.  The  plaintiff,  Ira  P.  Rankin, 
then  special  administrator  of  the  deceased  partner's 
estate,  had  never  been   a  lawyer,  and  was  besides  feeble 


298 

with  age.  Having  been  thus  deprived  of  an  attorney 
and  terrorized,  lie  took  a  copy  of  the  attorney's  brief 
that  had  been  struck  from  the  files,  as  stated  above> 
cut  out  of  it  the  entire  argument  and  ground  that  the 
secret  transfer  to  the  two  Newmans  was  illegal  because 
of  its  being  a  scheme  to  influence  the  Court  corruptly 
to  decide  for  the  two  Newmans,  and,  having  so  muti- 
lated the  brief,  signed  it  with  his  own  name  and  on 
February  4,  1895,  ^^^^  ^^  ^^  ^^^  brief  He,  however, 
left  in  the  brief  a  statement  of  the  decision  in  the  case 
of  Egerton  vs.  Earl  Brownlow^  referred  to  on  pp.  81-86 
above,  and  extracts  from  that  decision,  showing  the 
ground  on  which  it  had  been  made.  He  also  left  in  the 
brief  a  clear  and  orderly  statement  of  the  evidence  col- 
lated from  various  parts  of  the  record,  all  showing  with 
the  utmost  clearness  that  the  transfer  to  the  Newmans 
was  fraudulent,  and  that  they  had  been  guilty  of  every 
thing  charged  against  them  in  the  brief  as  it  had  been 
originally  filed. 


(2.)  The  Newmans  Openly  and  Insolently  Claiming  the  Dis- 
barment as  Entitling  Them  to  A  Decision  of  the  Case 
in  Their  Favor. 

The  Newmans  were  left  in  the  enjoyment  of  the  right 
to  employ  attorneys.  And  on  April  2,  1895,  E.  R. 
Taylor  and  Reinstein  Sl  Eisner,  as  their  attorneys, 
filed  for  them,  with  the  Clerk  of  the  Supreme  Court,  a 
brief  against  the  administrator's  brief  just  mentioned- 
And  so  coarse-grained  were  the  rogues,  so  eager  to 
strike  like  cowards  at  the  attorney,  who,  because  of  the 
disbarment,  could  make  no  reply,  that,  not  content  with 


299 

having  in  the  disbarment  an  efficient  pledge  of  a  decis- 
ion in  their  favor,  they  openly  claimed  it  as  snch  in 
their  printed  brief.  The  first  paragraph  of  their  brief 
begins  as  follows  : 

*'  Had  it  not  been  for  the  recent  unfortunate  experiences 
of  this  Honorable  Court  with  the  author  of  the  brief  of 
which  the  appellant's  brief,  in  propria  persona,  is  simply  a 
patchwork,  it  would  have  appeared  incredible  to  the  Court," 
etc.,  etc. 

The  next  paragraph  in  their  brief  begins  as  follows  : 

* '  Had  it  not  been  for  those  experiences,  it  would  have 
appeared  incredible  that,"  etc.,  etc. 

And  every  one  of  the  next  seven  paragraphs  of  their 
brief  begins  with  a  repetition  of  the   words  last  quoted. 

Here  may  be  seen  a  difference  between,  on  the  one 
hand,  the  finished  rogues  who  constitute  The  Southern 
Pacific  Company  and  their  general  officers,  and,  on  the 
other,  such  coarse-grained  common  knaves  as  the  two 
Newmans  and  their  attorneys,  Reinstein  &  Eisner 
and  E.  R.  Taylor.  The  Southern  Pacific  Company, 
having  dictated  and  obtained  the  judgment  of  disbar- 
ment and  defeated  the  bill  passed  by  the  Legislature, 
were  shrewd  enough  to  know  that  they  had  thus  se- 
cured for  their  agent.  Justice  Ralph  C.  Harrison,  a  final 
decision  of  the  case  against  his  betrayed  clients,  Mrs. 
Levinson  and  her  daughters;  and,  knowing  this,  watched 
in  silence.  The  two  Newmans  and  their  attorneys, 
Reinstein  &  Eisner  and  E.  R.  Taylor,  coarse-grained 
common  rogues,  could  not  refrain  from  expressly  avow- 
ing the  judgment  of  disbarment  to  be  the  ground  upon 
which  they  were  to  obtain  the  final  decision. 


300 

2.  The  Case  Falsely  Declared  to  Have  Been  Submitted  to 
be  Decided  by  Department  Two  of  the  Court  Without 
a  Hearing. 

On  August  14,  1895,  the  Justices  McFarland,  Hen- 
shaw  and  Temple  called  up  the  case  in  Department  Two 
of  the  Court.  No  one  appeared  for  the  appellant.  E. 
R.  Taylor  and  J.  B.  Rein  stein  appeared  for  the  two 
Newmans;  and,  with  their  consent,  the  three  Justices 
last  named  then  caused  an  order  to  be  entered  in  the 
minutes  by  which  the  case  was  falsely  declared  to  have 
been  submitted  to  Department  Two  of  the  Court  to  be 
decided  without  a  hearing. 


3.  The  Disbarred  Attorney  Hade  Administrator — A  Re- 
fusal to  Allow  a  Hearing  of  the  Case — A  Fourth  Re- 
fusal to  Set  Aside  the  Disbarment   Judgment. 

In  September,  1895,  ^^^  upon  the  written  request  of 
Mrs.  Levinson,  I,  the  immediate  victim  of  the  disbar- 
ment, was  appointed  by  the  Probate  Court  of  San  Fran- 
cisco the  administrator  of  John  Levinson,  the  deceased 
partner,  and  thereupon  took  the  place  of  Ira  P.  Ran- 
kin as  the  plaintiff  and  appellant  in  the  Supreme  Court 
in  the  suit  against  the  two  Newmans,  the  surviving 
partners. 

Upon  thus  becoming  the  plaintiff  in  the  suit  I  imme- 
diately filed  in  the  Supreme  Court  a  written  motion 
asking  for  a  hearing  of  the  case,  to  be  allowed  to  argue 
the  case,  and  asking  also  that  the  case  be  heard  in  bank, 
and  that  the  Commissioners  of  the  Court,  as  well  as 
the  Justices,  should  hear  the  argument.     In  the  written 


f 


301 

motion  I  pointed  out  that,  for  the  reasons  above  stated, 
the  decision  disbarring  the  attorney  pledged  its  authors 
and  those  who  had  refused  to  set  it  aside,  to  decide  this 
case  for  the  two  Newmans.  I  also  showed  the  ground- 
lessness of  the  disbarment  and  asked  that  it  be  set 
aside  so  as  to  withdraw  the  language  which  it  contained, 
taking  sides  in  advance  in  favor  of  the  two  Newmans 
That  motion  came  on  for  hearing  before  the  Supreme 
Court  in  bank  on  October  7,  1895.  ^^  ^^^^  ^s 
I  attempted  to  make  the  motion,  the  Chief  Justice, 
Wm.  H.  Beatty,  acting  as  the  spokesman  of  the  Court, 
with  great  anger  refused  to  allow  it  to  be  presented  and 
he  and  his  associates,  after  denying  a  hearing  of  the 
motion,  entered  then  and  there  an  order  declaring  it 
denied. 

4.     The  Case  Falsely    Delared   to  Have  Been  Submitted    to 
the  Court  in  Bank  to  be  Decided  Without  a  Hearing. 

Under  the  order,  above  mentioned,  falsely  declaring 
the  case  to  have  been  submitted  to  Department  Two  of 
the  Court  to  be  decided  without  a  hearing,  the  case  was 
kept  in  Department  Two  until  March  17,  1896 — more 
than  seven  months.  On  March  17,  1896,  the  Chief 
Justice,  Wm.  H.  Beatty,  in  the  absence  of  the  appellant 
and  without  any  notice  to  him  and  without  his  consent, 
made  an  order  transferring  the  case  to  the  Court  in 
bank,  and  falsely  declaring  it  to  have  been  submitted  to 
the  Court  in  bank  to  be  decided  without  a  hearing. 

The  case  was  then  kept  in  that  condition  and  before 
the  Court  in  bank  for  seven  months  and  nineteen  days 
longer,  i.  ^.,  until  November  5,  1896.  In  the  meantime 
there  was 


302 
5.     The  flaking  of  an  Appeal  to  the  People. 

The  third  day  of  November,  1896,  was  the  day  of  the 
election  of  the  President  of  the  United  States  and  on 
the  same  day  there  was  held  in  San  Francisco  the  gen- 
eral election  of  City  and  County  officers,  an  election 
which  is  held  in  San  Francisco  biennially.  Here  was 
an  opportunity  of  appealing  to  the  people  against  the 
crime  of  the  disbarment.  I  had  resolved  to  make 
such  an  appeal,  as  a  last  recourse,  but  as  long  as  I 
could  I  refrained  from  entering  upon  it,  hoping  that  the 
Justices  of  the  Supreme  Court  would  themselves  recog- 
nize their  crime  and  voluntarily  desist  from  it.  After 
waiting  until  within  about  three  weeks  of  the  election, 
I  went  before  the  people  of  San  Francisco  as  an  inde- 
pendent candidate  for  Judge  of  the  vSuperior  Court.  I 
had  no  support  of  any  newspaper,  for  a  complete  sup- 
pression of  the  case  in  the  newspapers  had  long  before 
this  time  been  established.  I  therefore  addressed  to 
the  electors  of  San  Francisco  a  short  paper  under  the 
heading  of  an  "Appeal  to  the  People,"  giving  a  brief 
statement  of  the  disbarment  stated  above,  of  the  pas- 
sage of  the  bill  by  the  Legislature  and  its  defeat  by  the 
pocket-veto  of  the  Governor,  and  of  the  case  against 
the  two  Newmans,  of  which  the  final  decision  had  not 
then  been  made;  and  I  asked  the  electors  *^to  lift  up 
and  vindicate  the  right  to  argue  freely  a  case  in  the 
courts  of  this  State." 

That  "Appeal  to  the  People"  was  answered,  accord- 
ing to  the  official  return,  by  12,644  votes — and  the  act- 
V  \\  number  of  votes  then  cast  for  me  was  probably 
iar  ;reater — votes  given  for  me  as  an  independent  can- 
did te,  given,  too,  amid  the  distractions  and  excitement 
of  :i  presidential  campaign,  and  though  I  was  without 


303 

the  support  of  a  newspaper  or  a  party,  and  though  the 
electors  were  addressed  only  through  the  medium  of  a 
short  circular  distributed  from  hand  to  hand  or  through 
the  mails,  and  which  fell  far  short  of  reaching  them  all. 
To  show  the  purpose  of  that  ''  Appeal  to  the  People'^ 
I  give  here  the  following  extract  from  the  short  paper 
by  means  of  which  it  was  made,  as  just  stated  : 

"  The  Justices  of  the  Supreme  Court,  in  defense 
of  their  rascal  associate  and  his  confederates,  have 
destroyed  that  right  [the  right  to  argue  a  case  in 
the  courts]  by  decreeing  that  I  shall  not  labor  at 
my  profession,  asserting  their  decree  to  be  a  "  pun- 
ishment "  for  arguing  the  case  of  the  widow  and 
her  daughters  against  the  villainy  of  Justice  Har- 
rison and  his  confederates. 

*  -Jt  * 

"  The  utter  absurdity  of  every  ground  even  pre- 
tended for  so  depriving  me  of  my  means  of  liveli- 
hood [referring  to  the  disbarment]  was  elaborately 
shown  by  Edmund  Burke  in  his  great  speech 
against  Warren  Hastings,  and  is  illustrated  by  the 
great  arguments  of  many  of  the  most  approved 
forensic  speakers.  No  lawyer  can  attempt  to  just- 
ify it  unless  from  ignorance,  or  insincerity,  or 
slavishness.  Every  Justice  of  the  Supreme  Court 
well  knows  that  their  decision  against  me  is 
groundless,  unlawful  and  iniquitous  to  the  last 
degree.  Its  sole  object  and  purpose  was  to  deal  me 
a  blow  so  ruinous  as  to  compel  me,  in  order  to  re- 
gain the  means  of  livelihood  of  myself  and  my 
family,  to  abandon  my  clients  and  retract  the 
charges  and  deny  the  proofs  of  Justice  Harrison's 

villainy. 

*  *  * 

"  It  is  well  known  that  in  all  the  Courts  of  the 
State  the  rulings  of  the  Supreme  Court  are  taken 
as  the  law  for  all   cases   subsequently   arising,  re- 


304 

gardless  of  any  principle  of  justice  or  of  anything 
in  the  Constitution  or  statutes. 

"  In  1890  =^  *  *  the  Supreme  Court  made 
and  placed  in  the  reports  a  ruling  that  a 
Judge  may  always  set  aside  the  verdict  of  a  jury 
whenever  it  does  not  satisfy  Imn.  (See  Cal.  Re- 
ports, Vol.  85,  p.  377.)  That  ruling  has  ever  since 
been  followed  by  the  Courts,  and  has  in  fact 
destroyed  the  right  of  trial  by  jury  in   this  State. 

"  A  still  more  important  right  of  every  human 
being — a  right  of  the  first  importance — is  that  of 
presenting  freely  to  a  Court  of  Justice,  either  in 
person  or  by  attorney,  as  he  may  prefer,  what 
he  conceives  to  be  the  grounds  on  which  he  seeks 
its  judgment.  That  right,  by  the  decision  against 
me,  has  been  struck  down  and  destroyed  in  this 
State. 

^'  By  the  agency  of  the  *'  boss,''  the  monopolies 
and  trusts  control  the  nominating  conventions  of 
the  great  parties,  and  thus  dictate  who  shall  be 
the  Judges  of  the  Courts.  Under  the  rule  estab- 
lished by  Justice  Harrison  and  his  associates, 
destroying  the  right  of  trial  by  jury,  those  who 
select  and  control  the  judges  of  the  Courts  have 
an  absolute  control  of  the  decision  of  every  law 
suit.  Under  the  rule  established  by  Justice  Har- 
rison's associates  in  the  disbarment  inflicted  upon 
me,  those  who  select  and  control  the  Judges,  may, 
at  their  will,  forbid  and  suppress  argument.  By 
the  decision  against  me,  destroying  the  right  to 
argue  a  case,  the  most  oppressive  tyranny  has,  in 
fact,  been  established  in  this  State. 

"  I,  therefore,  as  Independent  Candidate  for  the 
office  of  Judge  of  the  Superior  Court,  *  *  * 
appeal  to  the  voters  of  San  Francisco,  to  lift  up 
and  vindicate  the  right  freely  to  argue  a  case  in 
the  Courts  of  this  State. 

'^  The  Justices  of  the  Supreme  Court,  in  defense 
of  their  rascal  associate  and  his  confederates,  have 


305 

destroyed  that  right  by  decreeing  that  I  shall  not 
labor  at  my  profession,  asserting  their  decree  to  be 
a  "  punishment "  for  arguing  the  case  of  the 
"widow  and  her  daughters  against  the  villainy  of 
Justice  Harrison  and  his  confederates.  By  your 
votes  you  can  decree  that  I  shall  be  allowed  to 
labor  at  my  profession,  and  for  the  whole  people, 
as  a  Judge  of  the  Superior  Court.  You  may  thus 
overrule  by  your  votes  the  decision  of  Judge  Har- 
rison's associates  in  the  Supreme  Court,  destroy- 
ing, in  his  interest,  the  right  freely  to  argue  a  case 
in  the  Courts  of  this  State." 

Many  thousands  of  copies  of  that  paper  were  by  me 
issued  and  published  over  my  name  in  San  Francisco, 
between  the  middle  of  October  and  the  3rd  day  of  No- 
vember, 1896.  The  paper  was  also  translated  into 
Italian,  and  many  thousands  of  copies  in  Italian,  also 
over  my  name,  were  distributed  among  the  electors  of 
San  Francisco  speaking  the  Italian  language. 

The  only  reply  to  that  publication,  from  the  persons 
there  accused,  was  to  keep  back  the  final  decision  for  the 
two  Newmans  until  Nov.  5,  i8g6.,  the  second  day  after 
the  election. 


V. 

The  Final  Decision  for  the  Two  Newmans. 

The  seven  Justices  of  the  Supreme  Court  and  their 
masters,  the  organization  called  The  Southern  Pacific 
Company,  were  apparently  confident  that,  after  so  great 
delay,  after  having  for  so  long  a  time  established  a 
suppression     of    the     case     by   the    newspapers,    and 


3o6 

after  having  for  so  long  a  time  completely  destroyed 
my  law  practice  and  deprived  me  of  income,  and  after 
the  expense  which  I  had  incurred  in  the  appeal  tq  the 
people  of  San  Francisco,  just  mentioned,  and  my  fail- 
ure to  escape,  by  means  of  that  appeal,  from  the  miser- 
able condition  into  which  I  had  been  so  wickedly 
thrown  by  the  disbarment  and  by  the  false  and  libelous 
report  of  the  case  in  the  California  Reports — that,  after 
I  had  undergone  so  much,  they  could  proceed  safely  to 
consummate  their  crime.  And,  accordingly,  the  Chief 
Justice,  Wm.  H.  Beatty,  and  the  Associate  Justices 
Charles  H.  Garoutte,  Frederick  W.  Henshaw,  Thomas 
B.  McFarland,  Jackson  Temple  and  Wm.  C.  Van  Fleet, 
filed  on  November  5,  1896 — two  days  after  the  election 
last  mentioned — a  decision,  professing  it  to  be  a  decis- 
ion of  the  Supreme  Court  in  bank,  and  declaring  the 
case  to  be  finally  decided  for  the  two  Newmans  and  the 
deceased  partner's  estate  to  be  mulcted  with  the  costs 
of  the  appeal — a  decision  carrying  out  strictly  the  or- 
ders of  The  Southern  Pacific  Company,  as  shown  in  the 
editorials  published  in  The  Record-  Union  on  December 
the  1 3 til  and  December  the  20th,  1894,  and  reeking 
from  end  to  end  with  perfidy  and  cunning  and  trickery 
and  bad  faith  and  basest  lies,  outrageous  lies  about  the 
grounds  of  the  appeal,  outrageous  lies  about  the  facts 
of  the  case,  and  outrageous  lies  about  the  law  of  the 
State,  the  law  which  ought  to  have  been,  but  was  not, 
allowed  to  govern  the  decision. 

A  copy  of  the  decision  is  shown  in  the  Appendix  (pp. 

Like  the  judgment  of  disbarment,  the  final  decision 
for  the  two  Newmans  is  in  two  parts.  The  one  part 
purports  to  have  been  written  by  the  Associate  Justice 


307 

Charles  H.  Garoutte.  The  other  part  purports  to  be 
the  concurring  opinion  of  the  Chief  Justice  Wm.  H. 
Beatty  and  the  Justices  Temple  and  Henshaw,  but 
from  the  style  as  well  as  from  the  order  in  which  the 
names  are  placed,  was  evidentl}^  written  by  Wm.  H. 
Beatty,  the  Chief  Justice. 

And  the  respective  peculiarities  of  the  two  parts  of 
the  final  decision  for  the  two  Newmans  are  the  same  in 
kind  as  those  of  the  two  parts  of  the  judgment  of  dis- 
barment which  are  pointed  out  above.  In  the  part  pur- 
porting to  have  been  written  by  the  Justice  Charles  H. 
Garoutte,  there  is  the  more  self-control,  the  more  cun- 
ning, the  more  careful  concealment  behind  g^eneralities 
and  vagueness.  In  the  part  written  by  Wm.  H.  Beatty, 
the  Chief  Justice,  there  is  for  the  above  detail,  a  want 
of  self-control,  and  therefore  the  more  self-exposure  in 
dishonesty  and  malevolence,  and  for  the  more  open  in- 
dulgence in  deliberate  falsehood  upon  falsehood.  Here 
is  exhibited  the  same  eyil  distinction  of  the  Chief  Justice, 
Wm.  H.  Beatty,  which  is  shown  in  the  judgment  of 
disbarment  and  is  pointed  out  on  pages  260-263  above. 


1.    Tke  Case  was  Denied  a  Hearing. 

It  has  already  been  stated  that  the  administrator  of 
John  Levinson's  estate  and  the  three  defenseless  women 
represented  by  the  administrator,  that  is  to  say,  the 
persons  against  whom  the  decision  was  made,  were, 
against  their  ineffectual  protests  denied  even  the  funda- 
mental right  to  a  hearing  of  the  case  in  the  Supreme 
Court.  From  this  fact  alone  the  final  decision  against 
them  is  unlawful  and  outrageous  to  the  degree  of  be- 
ing in  law  utterly  void. 


3o8 

That  this   is  so  is   shown  by  numerous  decisions  of 
the  courts  cited  and  quoted  on   pages   128-138  above. 

True,  the  cases  there  cited  state  the  principle  in  its 
specific  application  to  courts  of  original  jurisdiction. 
But  the  principle  is  of  course  equally  supreme  in  the 
case  of  judgments  by  an  appellate  court.  It  is  also 
equally  supreme  even  when  a  printed  brief  is  before  the 
court  stating  what  the  party  conceives  to  be  the 
grounds  of  his  case.  This  is  of  course,  to  any  just 
mind,  manifest  in  principle;  it  has  been  expressly  so 
determined  and  declared  judicially;  and  it  is  stated  in 
an  express  guaranty  of  the],Constitution   of  California. 


(a)    It  Has  Been  Expressly  So  Determined  and 
Declared  Judicially, 

The  case  of  Queen  vs.  Archbishop  of  Canterbury ^  i 
Ellis  &  Ellis,  545,  (decided  by  the  English  Court  of 
Queen's  Bench  in  1861)  is  a  good  illustration.  The 
case  was  a  suit  for  a  mandamus  against  the  Archbishop 
of  Canterbury  to  compel  him  to  hear  an  appeal  from  a 
decision  of  the  Bishop  of  London  revoking  the  license 
of  Rev.  Alfred  Poole  as  an  assistant  curate.  The  Arch- 
bishop had  already  (as  was  claimed  by  him)  decided 
the  appeal;  his  answer  to  the  alternative  writ  showed 
that  the  appeal  had  been  taken  in  writing,  that  the 
whole  case  was  in  writing — i.  ^.,  contained  in  a  written 
record — that  the  Rev.  Alfred  Poole  (the  appellant)  had 
filed  a  written  statement  of  the  grounds  of  his  appeal — 
/.  ^.,  a  written  brief  stating  his  argument — and  that  he, 
the  Archbishop,  upon  examining  that  written  statement 
of  the  appellant,  ^  Vas  of  opinion,  upon  the  admissions 


J 


309 

and  statements  of  the  Rev.  Alfred  Poole  himself"  that 
the  judgment  appealed  from  was  correct  and  that  he 
had  therefore  decided  the  appeal  in  writing,  under  his 
hand,  "confirming  the  said  revocation." 

The  Court  of  Queen's  Bench  listened  at  length  to 
counsel  for  the  Archbishop,  but  refused,  because  of  the 
clearness  of  the  case,  to  hear  counsel  for  the  petitioner, 
and  ruled  that  the  decision  which  the  Archbishop  had 
made  was  utterly  void^  and  solely  because  he  had  not 
given  the  appellant  a  hearing.  The  Court  therefore 
granted  the  mandamus.  The  Judges  gave  their  reasons 
as  follows: 

*'Lord  Campbell,  C.  J. — I  regret  that  the  man- 
damus must  issue.  I  was  in  hopes  that  this  con- 
troversy would  have  come  to  an  end  without  this 
discussion.  But  we  have  no  discretion.  No  doubt 
the  Archbishop  acted  most  conscientiously,  and 
with  a  sincere  desire  to  promote  the  interests  of 
the  Church;  but  we  all  think  he  has  taken  an  er- 
roneous view  of  the  law.  He  was  bound  to  hear 
the  appellant,  and  he  has  not  heard  him.  It  is 
one  of  the  first  principles  of  justice  that  no  man 
should  be  condemned  without  being  heard.  We 
do  not  say  whether  the  Archbishop's  decision  was 
right  or  wrong.  We  say  onl}^  that  he  has  not 
heard  the  petitioner  *  *  *  The  appellant  here 
has  not  been  heard.  *  *  ^  Without  any  com- 
munication with  him,  his  Judge  decides  against 
him.  That  was  not  a  hearing.  *  *  *  W^e 
think  that  the  mandamus  to  hear  the  appeal  must 
go,  as,  in  our  opinion,  there  has  been  no  hearing." 

"Wightman,  J.~It  is  not  our  duty  to  give  an 
opinion  upon  the  merits  of  the  petition.  We 
merely  say  that,  ex  debito  justicice^  every  one  has 
a  right  to  be  heard  before  he  is  condemned." 


sIO 


"Crompton,  J. — I  have  not  been  able  to  enter- 
tain any  doubt  that  we  are  bound  to  issue  this 
mandamus.  Where  a  statute  of  this  kind  gives 
an  appeal,  it  gives,  by  implication,  a  right  to  be 
heard  upon  the  appeal.  Sect,  iii  clearly  contem- 
plates a  judicial  inquiry  before  the  Archbishop.     * 

*  *  Even  if  the  Archbishop  should  direct  that 
all  appeals  to  him  must  be  in  writing,  still  he  must 
hear  the  appellant  upon  those  written  appeals.     * 

*  *  Here  the  appeal  has  not  been  heard,  and 
the  mandamus  must  issue  to  the  Archbishop  to 
hear  it." 

"  Hill,  J. — This  mandamus  is  for  an  inquiry  to 
be  made  by  the  Archbishop.  *  '^  The  ques- 
tion for  us  is,  is  the  Archbishop,  under  the  statute, 
bound  to  hear  the  appeal  ;  and,  if  so,  what  is  a 
hearing.  Now,  it  is  clear  from  Sects.  98,  iii  and 
123,  that  the  Archbishop  is  bound  to  make  a  judi- 
cial inquiry  into  the  matter  of  the  appeal,  and  to 
give  a  judgment  as  the  result  of  that  inquiry. 
What  does  the  law  require  in  such  a  case  ?  Inva- 
riably, that  the  parties  who  are  to  be  liable  to  the 
judgment  shall  be  heard.  This  is  a  principle^ 
which  has  been  laid  down,  in  numerous  decisions, 
in  all  the  courts.  I  hold  in  my  hand  one  of  such 
decisions,  Capel  v.  Child^2  Cr.  &  J.  558,  in  which 
the  question  was,  whether  a  bishop  was  justified,, 
under  Stat.  57  G.  3,  C.  99,  S.  50,  in  issuing  a  requi- 
sition to  an  incumbent  to  appoint  a  curate,  etc., 
without  having  first  heard  the  incumbent.  The 
Court  held  that  he  was  not  justified,  and  that  he 
was  bound  to  have  the  incumbent  before  him  in  the 
first  instance.  And  this,  although  Sect.  50  enacts 
'  that  whenever  it  shall  appear  to  the  satisfaction 
of  any  bishop,  either  upon  his  own  knowledge  or 
upon  proof  by  affidavit,'  that  the  ecclesiastical 
duties  of  a  benefice  are  inadequately  performed,  he 
may  require  the  incumbent  to  nominate  a  fit  per- 


son  to  assist ;  and  although  the  Bishop's  requisi- 
tion contained  these  words, '  Whereas  it  appears  to 
us  of  our  own  knowledge.'  That  is  a  case  as 
strongly  in  point  as  can  well  be  conceived.  When 
we  look  at  the  petition  here,  we  find  that  the  ap- 
pellant denies  that  his  admissions  were  to  the  effect 
stated  by  the  Bishop.  That  is  the  question  which 
he  submits  to  the  judgment  of  the  Archbishop. 
He  has  the  right  to  be  heard  before  the  Archbishop 
to  argue  that  question ;  and  the  Archbishop  cannot 
give  judgment  until  that  question  has  been  argued 
before  him." 

In  the  Railroad  Tax  Cases,  13  Fed.  Rep.  (cited  on 
pp.  129  and  133  above),  Justice  Field,  in  giving  judg- 
ment for  The  Southern  Pacific  Railroad  Company, 
declared  the  same  principle.  In  answering  the  argu- 
ment that  the  railroad  corporation  had  presented  a  sworn 
statement  of  their  property  and  its  value,  before  the  tax 
was  assessed  against  them,  Justice  Field  there  said 
(at  p.  750): 

"  The  presentation  of  the  statement  can  no  more 
suspend  the  necessity  of  allowing  a  subsequent 
hearing  of  the  owners  than  the  filing  of  a  com- 
plaint in  court  can  dispense  with  the  right  of  the 
suitor  and  his  contestant  to  be  there  heard." 


Q))  The  Right  to  a  Hearing  Is  a  Fundamental 
Right  Irhplanted  hy  the  Creator, 

The  right  to  a  hearing  of  the  case  is  a  fundamental 
natural  right.  It  is  essentially  the  right  of  self-defense, 
a  right  so  deeply  implanted  that  it  is  claimed  sponta- 
neously by  every  member  of  the  animal  creation.     It  is 


312 

also  a  right  of  the  greatest  importance.  In  a  law  case  a 
human  being  may,  and  often  does,  have  at  stake  all  that 
he  most  values.  His  liberty  may  depend  upon  the 
decision.  His  life  may  depend  upon  it.  His  property, 
his  means  of  sustaining  life  and  making  it  pleasant, 
may  be  involved.  And  it  is  a  truth  of  the  commonest 
knowledge  that  there  is  nothing  that  can  equal,  nothing 
that  can  approach,  open,  verbal  discussion  as  a  means 
of  showing  the  important  and  essential  truth  and  jus- 
tice of  a  law  case  and  making  it  known  to  those  who  are 
to  give  the  decision.  It  would  be  just  as  unreasonable 
to  prohibit  verbal  discussion  on  any  other  matter  among 
men  as  to  allow  Judges  to  forbid  the  free,  open,  oral 
argument  of  a  law  case. 


((?)  The  Right  to  a  Hearing  of  Every  Case  in  the 
Supreme  Court  is  Guaranteed  by  the  Consti- 
tution of  California. 

The  Constitution  of  California,  in  the  2nd  section  of 
the  6th  article,  declares  : 

"  The  concurrence  of  four  Justices  present  at  the 
argument  shall  be  necessary  to  pronounce  a  judg- 
ment in  bank  ;  but  if  four  Justices  so  present  do  not 
concur  in  a  judgment,  then  all  the  Justices  quali- 
fied to  sit  in  the  case  shall  hear  the  aigumentP 

And,  in  the  "  Declaration  of  Rights,"  the  same  Con- 
stitution declares  (Art.  i.  Sec.  22)  that  such  guaranty 
of  the  right  to  a  hearing  is  both  ^'  mandatory  and  pro. 
hibitory,"  i,  e,^  both  that  the  party  shall  be  heard  and 
that  no  decision  shall  be  made  against  him  unless  he 
has  been  heard. 


313 

The  words  of  the  Constitution,  ^'present  at  the  argu- 
ment^'' '''SO  piesent  "  and  ^' shall  hear  the  argument^''  are 
simple  and  plain  words.  They  mean  what  they  say. 
They  are  utterly  inapplicable  to  the  mere  reading  of 
briefs.  The  guaranty  of  the  Constitution  plainly  is 
that  there  shall  be  no  decision  of  the  Supreme  Court  of 
this  State,  in  bank,  against  a  party  without  first  allow- 
ing him  the  right  freely  to  argue  the  case  in  open 
court,  nor  unless  the  four  Justices  concurring  in  the 
judgment  were  "present  at  the  argument." 


id)  The  Systematic  Violation  of  the  Right  by  the 
Southern  Pacific  Company' s  Justices, 

In  1892  the  Justices  of  the  Supreme  Court  of  Califor- 
nia, in  a  decision  written  (rather  appropriately)  by 
Ralph  C.  Harrison,  and  concurred  in  by  the  Justices 
Wm.  H.  Beatty,  Thos.  B.  McFarland,  Charles  H. 
Garoutte  and  John  J.  De  Haven,  made  and  placed  in 
the  Reports  a  ruling  {Niles  v.  Edwards^  95  Cal.  43), 
declaring,  and  enforcing  the  declaration,  that  the  words 
of  the  Constitution,  "  present  at  the  argument,"  "  so 
present,"  and  "  shall  hear  the  argument,"  do  not  secure 
any  right  to  a  hearing  of  the  case  by  the  Justices  who 
are  to  give  the  decision.  In  that  decision  they  say, 
"  The  term  '  heard,'  as  here  used  *  *  signifies  the 
consideration  and  determination  of  a  cause  by  the  Court 
or  by  a  Judge''  *  *  *'  does  not  necessarily  imply  that 
an  additional  or  oral  argument  must  be  made  or  lis- 
tened to  before  it  can  be  so  considered  or  determined." 

Is  it  not  plain  that  men  capable  of  making  such  a 
ruling  can  not  be  restrained  or  held  by  language  ?  To 
such  men,  language  means  anything  or  nothing  accord- 


3^4 

ing  to  the  arbitrary  dictates  of  their  corrupt  inclinations. 
They  have  the  minds  and  feelings  of  criminals.  They 
are  the  bad  men^  whom  Edmund  Burke  thus  describes  : 

'*  I  do,  then,  declare  my  conviction,  and  wish  it 
may  stand  recorded  to  posterity,  that  there  never 
was  a  bad  man  that  had  ability  for  good  service. 
It  is  not  in  the  nature  of  such  men  ;  their  minds 
are  so  distorted  to  selfish  purposes,  to  knavish, 
artificial  and  crafty  means  of  accomplishing  those 
selfish  ends,  that,  if  put  to  any  good  service,  they 
are  poor,  dull,  helpless.  Their  natural  faculties 
never  have  that  direction  ;  they  are  paralytic  on 
that  side  ;  the  muscles,  if  I  may  use  the  expression, 
that  ought  to  move  it,  are  all  dead.  They  know 
nothing,  but  how  to  pursue  selfish  ends  by  wicked 
and  indirect  means.  No  man  ever  knowingly  em- 
ployed a  bad  man  on  account  of  his  abilities,  but 
for  evil  ends." 


(e)  The  Riiht  to  Have  a  Hearing  of  Every  Case 
Appealed  to  the  Supreme  Court  Is  Fortified 
hy  the  Requirement  That  the  Decision  Shall 
Be  Given  Speedily, 

It  would,  of  course,  be  of  little  use  to  have  a  hearing 
of  the  case,  unless  the  decision  is  to  be  given  while  it 
inay  be  of  value  and  before  what  is  said  at  the  hearing 
is  forgotten.  And  the  24th  section  of  the  6th  Article  of 
the  Constitution  (as  adopted  in  1879)  therefore  pro- 
hibits the  long  withholding  of  the  decision,  saying  : 

"  No  Judge  of  a  Superior  Court  nor  of  the  Su- 
preme Court  shall,  after  the  first  day  of  July,  one 
thousand  eight  hundred  and  eighty,  be  allowed  to 
draw  or  receive  any  monthlj^  salary  unless  he  shall 


315 

take  and  subscribe  an  affidavit  before  an  officer 
entitled  to  administer  oaths,  that  no  cause  in  his 
court  remains  undecided  that  has  been  submitted 
for  decision  for  the  period  of  ninety  days." 

At  the  time  the  Constitution  was  adopted  and  ever 
since  the  entire  salary  of  every  Justice  of  the  Supreme 
Court  has  been  a  '^  monthly  salary"  (Political  Code, 
Sec.  1029).  And  it  is  a  familiar  rule  of  law  (see  i  Kent 
Com.,  p.  467)  that  the  imposing  a  penalty  for  any 
course  of  conduct  is  a  prohibition  of  it. 

The  Constitution,  therefore,  guarantees  that  every 
case  before  the  Supreme  Court  of  this  State,  in  bank, 
shall  be  argued  orally,  and  that  the  decision  shall  be 
given  within  ninety  days  from  the  time  the  case  is 
submitted. 

In  the  denial  of  a  hearing,  there  was,  for  the  wrong- 
ful benefit  of  the  two  Newmans,  and  to  cover  the  fraud 
and  treachery  and  villainy  of  their  confederate,  ''  Mr. 
Justice  Harrison,"  the  deliberate  and  malevolent  tramp- 
ling down  of  a  fundamental  principle  of  natural  justice 
and  of  an  express  guaranty  of  the  Constitution.  But 
the  legal  effect  is  that  the  decision  is  utterly  void  ;  the 
case  is  still  pending  in  the  Supreme  Court,  and  all 
hearing  and  consideration  of  the  case  is  denied. 


^.  The  Justices  Had  Pledged  Themselves  in 
Advance  to  Decide  the  Case  in  Favor  of  the 
Two  Kewmans. 

The  pledge  here  referred  to  is  the  judgment  of  dis- 
barment and  the  language  there  used,  a  pledge  which 
was  deliberately  and  with  the  utmost  determination  re- 


3i6 

peated  by  the  report  of  the  disbarment  case.     All  this 
has  been  shown  in  the  preceding  pag^-es. 

The  necessary  effect  of  such  a  pledge,  even  when 
taken  in  a  form  far  less  likely  to  be  insurmountable, 
has  been  very  well  stated  by  The  Southern  Pacific 
Company  themselves.  On  April  2,  1896,  E.  S.  Pills- 
bury,  the  agent  of  The  Southern  Pacific  Company  who 
has  been  mentioned  several  times  in  the  preceding 
pages,  addressed  the  United  States  Circuit  Court  in 
San  Francisco,  as  an  attorney,  in  the  suit  of  The 
Southern  Pacific  Company  against  the  Board  of  Rail- 
road Commissioners  (the  suit  mentioned  on  pp.  73-74 
above).  In  contending  that  the  reduction  of  fares  and 
freights  which  the  Board  had  made  was  illegal  and 
ought  to  be  held  void  because  one  of  the  Commissioners 
had  been  elected  upon  a  party  platform  pledging  him 
to  make  the  reduction,  Mr.  Pillsbury,  speaking  as  the 
representative  of  The  Southern  Pacific  Company,  then 
said: 

'While  we  concede  that  this  Board  is,  speaking 
generally,  legislative  and  executive  in  character,  we 
still  say  that  the  functions  of  the  Commission  are 
guasi'ividicial.  They  are  to  determine  what  is 
reasonable  and  just  between  the  railroad  and  the 
people.  And  the  idea  that  any  man  who  was  called 
upon  to  judge  as  to  differences,  as  to  the  establish- 
ment of  rights  between  individuals,  would  commit 
himself  in  advance,  is  inconsistent  and  repugnant 
to  all  notions  of  fairness  and  justice.  '^'  *  It  is 
hardly  supposable  that  a  judge  would  do  it.  Sup- 
pose, if  the  Court  please,  that  the  members  of  the 
Venezuela  Commission,  which  has  lately  been  ap- 
pointed, had  come  out  in  advance  and  expressed  their 
views  in  regard  to  the  rights  of  Venezuela  and  Great 
Britain,  and  what  they  would  undertake  to  estab- 
lish if  they  were  appointed  upon  that  Commission. 


317 

Suppose  the  President  of  the  United  States,  know- 
ing that  they  had  expressed  certain  views  or  opin- 
ions, should  appoint  them.  Why,  if  the  Court 
please,  the  acts  of  the  Commission  would  stink  in 
the  nostrils  of  the  whole  civilized  world.  Any 
judgment  they  might  render  would  have  no  weight 
or  consideration  whatever." 

Such  is  the  character  of  such  a  decision  as  declared 
by  The  Southern  Pacific  Company  themselves,  by  their 
agent,  E.  S.  Pillsbury.  Turn  now  to  the  pledge  dic- 
tated by  The  Southern  Pacific  Company  themselves  to 
their  tools  the  Justices  of  the  Supreme  Court  of  Cali- 
fornia—  a  pledge  printed  by  them  in  advance  in  their 
newspapers  The  Evening  Post  and  The  Record-Union 
and  taken  thence  and  subscribed  by  the  Justices  in  the 
judgment  of  disbarment — a  pledge  by  which  those  Jus- 
tices bound  themselves  in  advance  to  give  a  final  decis- 
ion of  the  case  in  favor  of  the  two  Newmans.  That  was 
a  pledge  far  more  binding  upon  the  future  action  of 
those  Justices  than  a  plank  in  a  party  platform  could 
have  been  upon  the  action  of  those  three  Railroad  Com- 
missioners. Should  not  the  final  decision,  thus  pledged 
in  advance,  ^^stink  in  the  nostrils  of  the  whole  civilized 
world"  and  '*have  no  weight  or  consideration  whatever"? 


S,  The  Final  Decision  For  the  Two  J^ewmans  is 
the  Work  of  The  Southern  Pacific  Company, 

On  pages  236-253  above,  attention  is  called  to  the 
fact  that  the  peculiar  falsehoods  about  the  facts  of  the 
case  which  are  set  out  in  the  judgment  of  disbarment 
were  the  invention  of  The  Southern  Pacific  Company 
and,  as  such,  were,  in  advance  of  the  disbarment,  pub- 


3i8 

lished  in  editorials  in  The  Record-  Unioji.  It  has  also  been 
pointed  out  that  the  disbarment  judgment  is  the  work  of 
The  Southern  Pacific  Company,  Those  same  peculiar 
falsehoods  reappear  in  the  final  decision  of  the  case  for 
the  two  Newmans.  And  throughout  the  final  decision 
for  the  two  Newmans  the  fact  is  manifest  that  that  de- 
cision is  also  but  the  carrying  into  effect  of  the  editor- 
ials published  in  The  Record-Union  on  December  the 
13th  and  the  20th,  1894 — a  carrying  into  effect  of  the 
pledges  which,  in  the  disbarment  judgment  The  South- 
ern Pacific  Company  laid  upon  the  Court-  The  final 
decision  for  the  two  Newmans  is  therefore  not  in  truth 
a  judgment  of  the  Supreme  Court  of  California.  On 
the  contrary,  it  is  an  act  which  The  Southern  Pacific 
Company  have  committed,  by  means  of  their  wrongful 
possession  of  the  Court,  and  in  order  to  support  their 
evil  agent,  the  Associate  Justice  Ralph  C.  Harri- 
son— to  reward  him  for  such  practices  as  his  mutilation 
of  the  record  in  Heckman  vs.  Swett  (stated  on  pages  60 
-62  above)  and  to  keep  him  for  like  practices  in  future. 
But  The  Southern  Pacific  Company  have  no  lawful  or 
just  right  to  be  the  Supreme  Court  of  California. 


Jf.    The  Case  Was  Denied  a  Concurrence  of  Four 

Judges. 

The  Constitution  of  California,  in  the  2nd  section  of 
the  6th  Article,  provides: 

"The  concurrence  of  four  Justices  present  at  the 
argument  shall  be  necessary  to  pronounce  a  judg- 
ment in  bank,  but  if  four  Justices  so  present  do 
not  concur  in  a  judgment,  then  all  the  justices 
qualified  to  sit   in  the  cause   shall  hear  the   argu- 


3^9 

ment;  but  to  render  a  judgment  a  concurrence  of 
four  Judges  shall   be    necessary.     In  the  determi- 
nation of  causes,  all  decisions  of  the  Court,  in  bank 
or  in  departments,  shall  be  given  in  writing,  and 
the  grounds  of  the  decision  shall  be  stated." 

And  another  section  of  the  Constitution,  already 
quoted  (Section  22  of  the  "Declaration  of  Rights")  de- 
clares that  all  the  above  provisions  are  both  "manda- 
tory and  prohibitory." 

The  Constitution  here  makes  the  "grounds  of  the 
decision"  an  essential  part  of  the  judgment.  And  the 
provision  is  that  a  judgment  which  lacks  a  concurrence 
of  four  Justices  on  any  of  its  essential  grounds  is  not  a 
judgment  of  the  Supreme  Court. 

This  express  guaranty  of  the  Constitution  is  in- 
tended to  secure  only  that  which  reason  and  natural 
justice  manifestly  require.  If  this  were  not  so,  then  a 
judgment  might  be  rendered  for  one  party,  while  upon 
every  question  in  the  case  a  majority  of  the  Court, 
even  all  the  Justices  but  one,  might  be  for  the  other 
party.  Take,  for  example,  a  suit  to  recover  a  sum  of 
money  on  contract.  To  such  a  suit  there  may  be  many 
defenses,  such  as:  i.  The  contract  was  not  made.  2. 
It  was  not  fulfilled  by  the  plaintiff.  3.  It  was  obtained 
by  fraud  and  was  rescinded.  4.  The  defendant  has  a 
release.  5.  The  defendant  has.  a  counter  claim  for  an 
equal  amount.  6.  The  claim  has  been  paid.  7.  It  is 
barred  by  the  Statute  of  Limitations.  Now,  suppose  a 
decision  made  for  the  defendant  in  the  following  man- 
ner. One  Justice  decides  for  the  defendant  on  the 
ground  that  the  contract  was  not  made,  the  six  other 
Justices  thinking  that  it  was  made^  Another  Justice 
decides  for  the  defendant  on  the  ground  that  the  con- 


320 

tract  was  not  fulfilled,  all  the  others  thinking  it  was  ful- 
filled. Another  Justice  decides  for  the  defendant  on  the 
ground  of  fraud  and  rescission,  all  the  others  thinking 
there  was  no  fraud  or  rescission.  Another  Justice  decides 
for  the  defendant  on  the  ground  of  release,  all  the  others 
thinking  there  was  no  release.  Another  Justice  decides 
for  the  defendant  on  the  ground  of  the  counterclaim,  all 
the  others  thinking  that  there  is  no  counterclaim.  An- 
other Justice  decides  for  the  defendant  on  the  ground 
that  the  plaintiff's  claim  has  been  paid,  all  the  others 
thinking  that  it  has  not  been  paid.  Another  Justice 
decides  for  the  defendant  on  the  ground  that  the  claim 
is  barred  by  the  Statute  of  Limitations,  all  the  others 
thinking  that  it  is  not  barred.  Here  would  be  a  judg- 
ment for  the  defendant,  while  on  every  question  in  the 
case  the  Court  would  stand  six  to  one  for  the  plaintiff. 
Would  such  a  result  be  permissible?  If  such  a  judg- 
ment were  made,  would  it  be  a  judgment  of  the  Su- 
preme Court  of  this  State  ?  Clearly  not.  It  is  forbid- 
den by  natural  justice  and  by  the  provision  of  the  Con- 
stitution here  quoted. 

Again,  the  essential  thing  in  the  decision  of  a  case  is 
to  answer  the  questions  involved.  The  answers  to  these 
questions  are  ''  the  grounds  of  the  decision."  When 
those  questions  are  answered,  the  conclusion  follows  as 
a  matter  of  course.  It  cannot  be  that  the  requirement 
of**  a  concurrence  of  four  Judges"  applies  only  to  the 
conclusion  and  not  to  the  premises  which  alone  estab- 
lish that  conclusion,  only  to  that  which  follows  as  a 
matter  of  course,  and  does  not  apply  to  that  which  alone 
calls  for  the  exercise  of  the  faculties  of  judgment. 
What  is  it,  then,  upon  which  the  Constitution  requires 
**  the  concurrence  of  four  Judges   present  at  the  argu- 


321 

ment,"  "a  concurrence  of  four  Judges?"  Manifestly 
it  is  "  the  grounds  of  the  decision." 

Reason  and  natural  justice  alike  manifestly  forbid 
that  where  six  of  the  seven  Justices  deny  the  major 
premise  of  the  syllogism,  and  where  six  of  the  seven 
deny  the  minor  premise  also,  they  should  nevertheless 
concur  unanimously  in  the  conclusion  which  is  estab- 
lished only  by  that  very  syllogism. 

Reason,  natural  justice  and  the  simple  truth  alike 
require  that  at  least  a  majority  of  the  Judges  should 
concur  in  the  grounds  on  which  a  case  is  decided,  and 
the  Constitution  expressly  secures  such  requirement. 

Take,  now  the- final  decision  for  the  two  Newmans. 
After  declaring  that  there  was  no  fraud  and  that  the 
partnership  articles  had  been  executed  by  the  deceased 
partner  and  were  binding  on  him  and  on  his  estate,  it 
became  necessary  to  decide  whether  the  language  of  the 
articles  authorized  the  executor  to  transfer,  as  he 
secretly  did  on  September  6,  1890,  the  deceased  partner's 
interest  in  the  firm  to  the  two  Newmans.  In  the  part 
of  the  decision  signed  by  the  Justices  Garoutte,  McFar- 
land  and  Van  Fleet,  this  is  expressly  made  one  of  the 
necessary  grounds  of  the  decision.  In  the  part  signed 
by  the  Justices  Beatty,  Temple  and  Henshaw  it  is 
declared  to  be  )"  of  course  the  main  question  in  the 
case''  (see  the  Appendix,  p.  61). 

It  is  on  this,  *'  the  main  question  in  the  case,"  that 
the  Justices  taking  part  in  the  decision  have  divided, 
three  and  three.  Three  of  them,  namely,  Charles 
H.  Garoutte,  Thomas  B.  McFarland  and  Wm.  C.  Van 
Fleet,  have  declared  that  the  language  of  the  articles 
did  authorize  such  transfer,  and  that  it  was  therefore 
valid  (see  the  Appendix,  pp.  55-60).      The  other  three> 


322 

namely,  Wni.  H.  Beatty,  Jackson  Temple  and  Frederick 
W.  Henshaw,  have  declared  that  the  articles  did  not 
authorize  such  transfer  and  that  "the  transfer  to  the 
Newmans  was  unauthorized  and  void." 

Here,  then,  upon  an  essential  ground  of  the  decision, 
there  is  lacking  a  "concurrence  of  four  Judges"  (see  the 
Appendix,  pp.  67-70  and  p.  74). 

In  the  part  of  the  decision  signed  by  the  Justices 
Beatty,  Temple  and  Henshaw,  it  is,  however,  declared 
that,  although  the  secret  sale  made  by  the  executor  was, 
as  they  say,  "  unauthorized  and  void,"  it  was  afterward 
made  good  by  estoppel  and  by  ratificaticn  (see  the  Ap- 
pendix, pp.  71-75).  But  this  declaration  of  an  estoppel 
and  a  ratijicatzon  was  concurred  in  by  only  three  Jus- 
tices, namel}^,  Wm.  H.  Beatty,  Jackson  Temple  and 
Frederick  W.  Henshaw. 

In  the  part  of  the  decision  written  by  Wm.  H.  Beatty, 
the  Chief  Justice,  the  two  points  last  mentioned  are 
declared  to  be  "  the  questions  upon  which  the  decision 
of  the  appeal  necessarily  depends"  (see  the  Appendix, 
p.  67). 

Therefore,  upon  an  essential  ground  of  the  decision, 
an  essential^'element  of  the  judgment,  which  its  authors 
themselves  declare  to  be  "  the  questions  upon  which 
the  decision  of  the  appeal  necessarily  depends,"  the 
final  decision  for  the  Newmans  lacks  "  a  concurrence 
of  four  Judges." 

The  authors  of  the  decision  doubtless  intended  to 
deliver  something  which  would  at  least  appear  to  be  a 
final  decision  of  the  case  for  the  two  Newmans.  In 
dividing  three  against  three  upon  what  they  themselves 
have  declared  to  be  "  the  main  question  in  the  case," 
it  may  have  been  their  purpose   to  make  their  decision 


323 

look  less  like  a  put-up  job.  It  may  have  been  a  mere 
accident.  It  may  have  been  due  to  that  blindness 
which,  it  has  been  said,  God  casts  upon  great  criminals 
in  order  that  justice  may  overtake  them.  It  is  possible 
that  in  making  the  decision  its  authors  did  not  have  in 
mind  the  necessity  of  a  "  concurrence  of  four  Judges'' 
on  the  grounds  of  the  decision.  But  on  Nov.  25,  1895, 
I,  as  the  plaintiff  in  the  case,  pointed  it  out  to  them  in 
a  printed  petition  and  asked  that  the  decision  be  set 
aside  and  that,  as  required  by  the  Constitution,  "  all 
the  Justices  qualified  to  sit  in  the  cause  shall  hear  the 
argument."  But  if  the  decision  had  been  set  aside  and 
an  argument  allowed,  the  unspeakably  base  treachery 
and  fraud  and  villainy  of"  Mr.  Justice  Harrison"  would 
have  been  publicly  set  forth.  So  on  December  5,  1896, 
the  petition  was  denied,  without  giving  any  reason. 

Here,  for  the  benefit  of  the  two  Newmans  and  to 
cover  the  fraud  and  treachery  and  villainy  of  their  con- 
federate "  Mr.  Justice  Harrison,"  there  was  another 
deliberate  and  intentional  violation  of  natural  justice 
and  of  the  Constitution  of  the  State. 

And  the  legal  effect  is  that  the  final  decision  for  the 
two  Newmans  is  not  a  judgment  of  the  Supreme  Court  of 
California,  but  is,  as  it  ought  to  be,  utterly  void.  The 
case  is  still  pending  in  the  Supreme  Court  and  all  hear- 
ing and  consideration  and  lawful  or  rightful  decision  of 
it  is  denied. 

In  the  case  against  the  two  Newmans,  both  the  prin- 
ciples of  natural  justice  and  the  express  guaranties  of 
the  Constitution  have  been  deliberately,  intentionally 
and  corruptly  violated.  The  right  to  a  hearing  of  the 
case,  the  right  to  argue  the  case,  was  never  waived.  It 
was  most  foully  and  wickedly   struck   down  by  disbar- 


324 

ring  the  attorney  and  striking  the  brief  from  the  files. 
The  right  was  again  claimed  in  October,  1895,  (see  pp. 
300-301  above)  and  was  again  foully  and  wickedly  denied. 
It  was  again  claimed"  in  the  petition  filed  after  the  final 
decision,  the  petition  denied  on  October  5,  1896.  And 
the  corrupt  and  wicked  motive  with  which  this  right 
has  been  so  denied  has  been  to  shield  and  uphold  the 
treachery  and  fraud  and  unspeakable  villainy  of  "  Mr. 
Justice  Harrison."  The  right  to  a  speedy  decision  was 
also  denied,  and  from  the  same  evil  motive.  The  case 
was  a  simple,  plain  case.  It  imperatively  demanded  a 
speedy  decision.  All  that  was  needful  to  a  speedy  decis- 
ion was  honesty  and  sincerity  in  the  Justices.  By  the 
disbarment  of  the  attorney  and  striking  his  brief  from 
the  files  the  case  was  thrown  over  from  January,  1895, 
to  August,  1895,  about  seven  months.  It  was  then^ 
under  the  false  pretense  that  it  had  been  submitted  for 
decision,  kept  in  Department  Two  of  the  Court  for 
more  than  seven  months  more.  Afterwards  it  was  kept 
in  the  same  wa3^  in  bank  for  more  than  seven  and  a  half 
months  longer.  That  this  delay  was  for  no  honest  pur- 
pose is  proved  by  the  character  of  the  decision  at  last 
filed  on  November  5,  1896.  Why,  then  was  the  delay  ? 
It  was  to  wear  out  the  dead  partner's  family.  It  was 
to  wear  out  their  attorney  struggling  under  deprivation 
of  his  means  of  livelihood  and  the  false  brand  of  crim- 
inal so  foully  and  wickedly  put  upon  him  by  the  dis- 
barment. It  was  to  divert  the  attention  of  the  public 
from  the  great  crime  that  was  being  committed.  It  was 
to  shield  and  cover  and  uphold  the  treachery  and  fraud 
and  unspeakable  villainy  and  baseness  of  "  Mr.  Justice 
Harrison."  And,  as  shown  above,  the  right  to  a  decis- 
ion having  a  concurrence  of  four  Judges,  was  also 
denied,  and  manifestly  from  the  same  evil  motive. 


325 


6.     The  Corrupt  Suppression   of  an   Unanswer- 
able Ground  of  the  Appeal. 

In  the  plaintiff's  brief  on  file  in  the  Supreme  Court 
the  first  stated  of  the  grounds  of  the  appeal  is  that  the 
decision  of  the  Superior  Court  was,  in  the  words  of  the 
statute,  "  against  law,"  because  ordering  a  judgment  in 
favor  of  the  two  Newmans,  while  their  own  answer  on 
file  showed  the  plaintiff  entitled  to  judgment  against 
them  for  $662.40  at  the  very  least.  The  brief  pointed 
out  that  where  a  decision  is  so  "  against  law,"  the. 
Superior  Court  is  bound  to  grant  the  motion  to  set 
aside  the  decision  and  allow  a  new  trial,  and  that  if  it 
refuses,  the  vSupreme  Court  must  reverse  the  order  of 
refusal. 

In  the  brief  this  point  is  stated  clearly  and  a  long 
list  of  decisions  of  the  Supreme  Court  of  California  is 
given,  showing  conclusively  and  unanswerably  that  on 
this  ground  alone  the  plaintiff  was  entitled  to  a  decision 
of  the  Supreme  Court  in  his  favor  reversing  the  order 
appealed  from. 

The  authors  of  the  decision,  finding  this  ground  of 
the  appeal  conclusive  in  favor  of  the  plaintiff  and  unan- 
swerable, dishonestly  ignored  it,  dishonestly  feigned 
that  no  such  ground  of  appeal  was  claimed. 

Let  us  compare  this  with  the  decision  of  the  appeal 
from  the  judgment  (pp.  289-292  above).  On  that  ap- 
peal the  ruling  was  that  the  judgment  appealed  from 
was  unlawful.  But  the  Court  below  had  made  no  ex- 
press decision  declaring  upon  what  facts  the  judgment 
was  based.  The  only  facts  that  the  Superior  Court 
could  be  deemed  to  have  established  by  its  decision 
were  therefore  such  as  its  judgment  contained  impliedly; 


326 

i.  <?.,  such  facts  only  as  would  support  such  a  judgments 
That  judgment  having  been  declared  illegal,  and  being 
necessarily  set  aside  even  in  the  act  of  modifying  it, 
the  case  was  left  without  any  decision  upon  any  fact  in 
issue.  To  state  this  in  another  form,  the  Court  ruled 
that  no  decision  of  the  questions  of  fact  could  support 
such  a  judgment;  from  this  it  necessarily  followed  that 
no  decision  of  the  facts  had  been  made.  The  Court,, 
therefore,  ought  simply  to  have  reversed  the  judgment. 
But  a  reversal  of  the  judgment  would  have  left  the 
plaintiff  entitled  to  a  trial  of  the  case  anew  in  the  Su- 
perior Court.  And  therefore,  instead  of  reversing  the 
judgment,  the  six  Justices  ordered  it  modified  so  as  to 
give  Mr.  Levinson's  estate  on  $662.40. 

The  decision  of  the  appeal  from  the  judgment  and 
the  dishonest  suppression  of  the  first  of  the  assigned 
grounds  of  the  appeal  from  the  order  refusing  to  set 
aside  the  decision  and  allow  a  new  trial,  were  acts  of 
the  same  nature.  The  one  shows  a  motive  to  force  a 
final  decision  for  the  two  Newmans.  The  other  is  in- 
dubitable proof  of  the  corrupt  and  dishonest  intention 
of  its  authors  to  the  same  end.  Each  tallies  with  the 
other  and  with  the  other  rulings  in  the  case. 


6,  The  Lie  That  the  JV'ewmans'  Inventory  and 
Appraisement  Showed  $20,790.88  as  the 
value  of  Mr,  Levinson's  Interest  in  the  Firm, 

The  only  part  of  the  Newmans'  inventory  and 
appraisement  which  even  pretended  to  show  the  value 
of  Mr.  Levinson's  interest  is   that  called  by  them  the 


I 


327 

^'balauce  sheet."  The  "balance  sheet"  is  in  the  record 
of  the  case  in  the  Supreme  Court.  The  value  of  Mr. 
Levinson's  interest  in  the  firm,  according  to  the  New- 
mans' inventory  and  appraisement,  has  to  be  found  by 
putting  together  various  items  shown  on  the  "balance 
sheet,"  and  a  bare  inspection  of  the  "balance  sheet'' 
shows  the  value  of  Mr.  Levinson's  interest  in  the  firm, 
as  there  indicated,  to  be  $21,389.10.  No  such  sum  as 
$20,790.88  appears  in  any  part  of  the  Newmans'  inven- 
tory and  appraisement  nor  can  any  such  sum  be  derived 
from  it  or  from  the  "balance  sheet."  The  plaintiff's 
brief  clearly  points  out  all  this,  and  states  it  as  one  of 
the  facts  showing  that  the  executor  and  Ralph  C.  Har- 
rison, in  making  the  secret  sale  of  Mr.  Levinson's  in- 
terest to  the  Newmans  for  only  $29,790.88,  were  only 
the  tools  of  the  Newmans,  since  a  bare  inspection  of 
the  paper  of  summaries,  the  "balance  sheet,"  on  the 
showing  of  which  they  were  professing  to  make  the 
sale,  would  have  shown  the  value,  according  to  the 
Newmans  themselves,  to  be  $21,389.10. 

In  the  decision  filed  November  5,  1896,  this  point  is 
met  by  deliberately  lying  about  it. 

With  deliberate  lying,  it  is  twice  declared  in  the  part 
purporting  to  have  been  written  by  Charles  H. 
Garoutte,  that  the  inventory  and  appraisement  made  by 
the  two  Newmans  showed  the  value  of  the  deceased 
partner's  interest  in  the  firm  to  be  $20,790.88.  The 
passages  in  which  that  lie  appears  may  be  seen  on 
pages  52  and  53  of  the  Appendix. 


328 

7.  The  Stupendous  Lie  That  if  the  Accounting 
Sued  for  Were  Allowed  It  Would  Result  in  a 
Balance  to  Be  Paid  to  the  Two  Kewmans. 

A  similar  statement  had  been  made  by  the  Judge  of 
the  Superior  Court  on  the  trial.*  The  plaintiff's  brief 
in  the  Supreme  Court  takes  up  that  statement  of  the 
Superior  Court  Judge,  and  demonstrates  the  complete 
absence  of  even  a  particle  of  evidence  in  its  support. 
The  final  corrupt  decision  of  the  case  for  the  two  New- 
mans, ignores  that  demonstration  and  substitutes  mon- 
strous lies  in  its  place.  The  lies  here  referred  to 
as  uttered  in  the  part  purporting  to  have  been  written 
by  Charles  H.  Garoutte,  may  be  seen  on  p.  54  of  the 
Appendix,  where,  for  example,  it  is  said  that,  "  as  said 
by  the  trial  Judge,  upon  an  accounting  the  sum  realized 
by  the  legatees  would  fall  far  short  of  the  amount  act- 
ually paid  by  the  surviving  partners  to  them."  In  the 
part  written  by  Wm.  H.  Beatty,  the  Chief  Justice,  the 
lies  may  be  seen  on  page  71  of  the  Appendix,  where, 
for  example,  it  is  said  that  "  The  evidence  seems  to  be 
without  conflict,  and  at  least  is  strongly  in  favor  of  the 
respondents,  that  the  appraised  value  put  by  the  New- 
mans upon  the  interest  of  their  deceased  partner  was 
greater  than  its  actual  worth." 

Those  statements  in  the  decision  are  not  mere  error ; 
they  are  deliberate  and  outrageous  lies.  There  is  not 
a  particle  of  any  such  evidence  as  their  authors  assert, 
^nd  the  decision  was  written  with  a  full  knowledge  of 
that  fact.  Not  so  much  as  a  pmHicle  of  evidence  was 
produced  as  to  what  goods  were  valued  or  zvliat  values 
were  put  down.     And  the  Newmans  openly  avow  that 

*  See  the  Appendix,  p.  4. 


329 

they  took  the  good  will  of  the  business,  an  asset  of  im- 
mense value,  and  allowed  nothing  for  it.  And,  besides, 
there  w^ere  before  the  authors  of  the  decision  all  the 
facts  mentioned  on  pages  21-29  above,  and  also  those 
mentioned  in  divisions  15,  27  and  28  of  this  chapter. 

The  falsehood  of  the  statement  that  "upon  an 
accounting  of  the  sum  realized  by  the  legatees  would 
fall  far  short  of  the  amount  actually  paid  by  the  surviv- 
ing partners  to  them,"  is  a  lie  so  monstrous  that  its 
lying  character  is  manifest  at  a  glance.  Why  have  the 
Newmans  resisted  the  accounting  if  it  would  result  in  a 
balance  to  be  paid  to  them  ? 

These  falsehoods  of  the  six  Justices  as  to  the  facts  of 
the  case  were  uttered  only  to  deceive  the  public.  As  a 
matter  of  law,  it  makes  no  difference  as  to  the  plaint- 
iff's right  to  an  accounting,  w^hether  the  amount  paid 
by  the  Newmans  was  the  value  of  Mr.  Levinson's  inter- 
est in  the  firm  or  not.  The  plaintiff's  brief  sets  forth 
the  decisions — decisions  of  honest  Judges  such  as  Lord 
Eldon,  showing  that  wherever  the  sale  of  a  dead  part- 
ner's interest  in  a  firm  is  for  any  reason  void,  his  repre- 
sentative has  the  legal  right  to  an  accounting,  irrespec- 
tive of  whpther  the  sum  received  was  its  full  value  or 
not. 

8.  The  Lying  Misrepresentation  and  Dishonest 
Treatment  of  the  Ground  that  the  Partner- 
ship Articles  Were  Kot  Executed  by  Mr. 
Levinson,  hut  Fraudulently  Obtained  by  the 
Two  JSTewmans. 

This  is  one  of  the  particular  points  in  respect  to 
which,  in  the  decision  disbarring  the  attorney,  pledges 


330 

were  laid  upon  the  Court  to  decide  the  case  in  favor  of 
the  two  Newmans,  as  shown  on   pages   233-236   above. 

In  the  plaintiff's  brief  all  the  evidence  is  set  forth, 
showing  Mr.  Levinson's  mental  condition  when  the 
Newmans  obtained  his  signature  to  the  articles,  and 
their  conduct  in  having  the  articles  prepared  solely 
from  their  own  directions  (as  stated  on  pp.  17-20 
above). 

In  the  plaintiff's  brief  the  point  is  made  that  Mr. 
Levinson's  incapacity  consisted  in  his  want  of  will 
power,  caused  by  his  disease.  And  the  authorities  are 
given,  showing  that  capacity  to  make  a  contract  re- 
quires not  only  intelligence  or  power  to  understand,  but 
also  will  power,  i.  e.^  power  to  stand  up  for  one's  self 
against  the  will  of  the  other  party  or  parties  to  the 
contract — that  although  one  may  have  intelligence,  yet, 
unless  he  has  such  will  power,  any  instrument  he  may 
subscribe  for  another  will  be  in  fact  only  the  act  of  that 
other. 

The  brief  also  shows,  giving  the  authorities,  that 
capacity  to  make  a  last  will  and  testament  does  not 
require  such  will  power  as  is  necessary  for  capacity  to 
make  a  contract,  because  in  making  a  last  will  and  tes- 
tament one  does  not  need  to  stipulate  for  anything  for 
himself,  and  is  not  dealing  with  any  one  adversely 
interested. 

The  brief  also  shows  that  Mr.  Levinson's  will,  dated 
twenty-eight  days  after  the  articles,  was  evidently  influ- 
enced by  the  two  Newmans,  but  that  even  that  will 
shows  positively  that  Mr.  Levinson  did  not  contemplate 
that  the  Newmans  were  to  take  his  interest  in  the  firm 
after  his  death.  The  brief  also  shows  that  Mrs.  Levin- 
son  and  her  daughters  had  taken  no  part  in  the  probate 


331 

of  the  will,  and  had  neither  the  means  nor  any  suffi- 
cient pecuniary  interest  to  question  Mr.  Levinson's  tes- 
tamentary capacity. 

In  the  final  corrupt  decision  for  the  two  Newmans^ 
its  authors  lie  first  about  the  point  made  by  the  brief. 
They  lyingly  pretend  that  the  point  urged  by  the 
plaintiff  was  that  Mr.  Levinson  had  not  intelligence  to 
understand  the  articles.  Then,  while  impudently  and 
villainously  lying  as  to  the  ground  urged  by  the  plaint- 
iff's brief,  they  most  scandalously  and  infamously  lie 
in  their  treatment  of  the  facts. 

The  particular  passages  of  the  decision  here  referred 
to,  are  (in  the  part  purporting  to  have  been  written  by 
Justice  Garoutte)  the  language  beginning  with  the  sec- 
ond line  of  page  55  of  the  Appendix  and  extending  to 
the  end  of  the  paragraph.  In  the  part  written  by  Wm. 
H.  Beatty,  the  Chief  Justice,  they  are  the  first  para- 
graph (Appendix  p.  61)  and  also  the  last  four  lines  of 
p.  61  and  the  first  ten  lines  of  page  62  of  the  Appen- 
dix. 

In  the  treatment  of  this  ground  of  the  appeal  the 
decision  contains  in  the  passages  just  quoted  the  fol- 
lowing falsehoods,  all  of  which  are  deliberate  and 
outrageous  lies  : 

(i.)  The  impudent  lie  that  the  incapacity  of  Mr. 
Levinson  claimed  by  the  appellant  was  a  want  of  intel- 
ligence. 

(2.)  The  dishonest  suppression  of  the  plaintiff's 
claim  that  Mr.  Levinson  was  lacking  in  the  will  power 
necessary  to  his  making  such  a  contract  with  the  New- 
mans. They  could  have  suppressed  this  ground  for  no 
other  reason  than  that  they  found  it  unanswerable. 


332 

(3.)  The  lying  misrepresentation  of  the  facts.  The 
gross  bad  faith  in  the  treatment  of  the  facts.  The  dis- 
honest suppression  of  the  fact  that  the  articles  of 
partnership  had  been  prepared  by  the  Newmans. 

(4.)  The  lie  that  "  there  is  substantial  evidence"  in 
favor  of  Mr.  Levinson's  capacity.  There  is  not  a 
particle  of  any  such  evidence,  and  the  authors  of  the 
decision  well  knew  that  fact  while  making  their  decision. 

(5.)  The  extreme  dishonesty,  the  spirit  of  lying, 
manifest  in  the  sentence,  ''As  a  salient  circumstance 
bearing  upon  Mr.  Levinson's  mental  capacit}^  at  that 
particular  time,  it  may  be  noticed  that  some  few  days 
thereafter  he  executed  his  last  will  and  testament,  the 
will  under  which  this  administrator  is  now  acting." 

(6.)  The  lie  that  after  Mr.  Levinson's  return  from 
Europe  "  for  several  months  and  up  to  the  time  of  his 
death  he  gave  his  personal  attention  to  the  business  of 
the  firm  as  he  had  always  done  in  the  past."  The 
gross  falsehood  and  dishonesty  manifest  in  the  sen- 
tence, "  He  lived  more  than  one  year  thereafter,  and 
during  a  portion  of  that  time  was  able  to  attend  to 
business."  These  assertions,  indeed,  show  that  their 
authors  carefully  culled  the  record  to  search  for  testi- 
mony that  might  favor  the  Newmans.  They  are  basqd 
on  an  assertion  of  William  J.  Newman,  shown  at  page 
309  of  the  record.  But  Newman  does  not  pretend  that 
Mr.  Levinson,  after  his  return  from  Europe,  "  gave  his 
personal  attention  to  the  business  of  the  firm  as  he  had 
always  done  in  the  past."  He  says  ''  he  was  ill  a  great 
part  of  the  time"  and  that  ''  he  was  attending  /o  the 
same  business  as  he  always  did  before T  He  does  not 
pretend  to  sa^^  how  much  of  the  time  he  was  attending 


333 

to  business,  or  with  what  degree  of  efficiency,  or  that  in 
his  illness,  even  when  he  could  come  to  the  store,  he 
was  doing  any  more  than  merely  to  be  around,  as- 
sisted and  humored  by  the  employes.  How  false,  how 
full  of  dishonesty,  is  the  pretense  that  this  throws  any 
light  on  his  mental  capacity  a  year  before !  What  a  lie 
to  say  that  "  for  several  months  and  up  to  the  time  of 
his  death  he  gave  his  personal  attention  to  the  business 
of  the  firm  as  he  had  always  done  in  the  past  " ! 

{7).  The  lie  that  "  for  two  years  after  the  death  of 
Levinson"  there  was  no  question  of  his  mental  capacity 
— the  lying  assertion  of  "'  the  charge  of  undue  influence 
by  his  surviving  partners  being  an  evident  after- 
thought." There  was  no  occasion  to  raise  that  question 
until  the  effort  to  compromise  had  failed,  and  nothing 
less  than  gross  bad  faith  could  prompt  the  making  of 
any  adverse  observation  upon  the  failure  to  raise  the 
question  before  that  time.  But  as  a  matter  of  fact,  Mr. 
Levinsou's  mental  incapacity  at  the  date  of  the  articles 
and  the  fact  of  the  Newmans  taking  undue  advantage 
of  him  was  stated  in  the  very  first  paper  ever  filed  by 
Mrs.  Levinson  and  her  daughters  ;  namely,  in  their 
petition  filed  October  11,  1890,  to  correct  the  inventory 
and  appraisement  filed  by  the  executor.  This  is  shown 
at  page  133  of  the  record  in  the  Supreme  Court  and  is 
stated  on  page  37  of  this  paper. 

(8.)  The  lying  statement  that  there  is  no  evidence 
that  the  Newmans  were  contracting  with  the  expecta- 
tion of  being  the  survivors,  that  ^'we  do  not  find  that 
the  illness  [of  Mr.  Levinson]  was  deemed  mortal." 
These  statements  in  the  decision  are  deliberate  lies. 
The  evidence  is  full  and  uncontradicted  that  Mr.  Lev- 
inson was  at  the  time  in  continual  danger  of  dying  by 


334 

suicide,  and  was  being  watched  to  prevent  him  from 
committing  suicide.     See  pages  17  and  18  of  this  paper. 

(9.)  The  lying  statement — an  impudent  lie  about 
the  law — that  Mr.  Levinson's  mental  incapacity  is  not 
one  of  the  issues  of  the  pleadings,  the  complaint  and 
the  answer.  The  complaint  alleges  the  non-existence 
of  any  written  partnership  contract.  The  answer  de- 
nies this  and  alleges  the  execution  of  the  articles  in 
question.  By  the  settled  law  of  the  State,  by  a  simple 
section  of  the  Code,  familiar  to  every  California  lawyer, 
this  placed  in  issue  the  execution  of  the  articles  of  part- 
nership in  question  and  every  fact,  such  as  the  mental  in- 
capacity of  any  party,  that  would  tend  to  prove  or  dis- 
prove their  execution. 

(10.)  The  lie  that  Mr.  Levinson's  ''mental  status 
does  not  appear  to  be  an  element  of  the  case  that  at- 
tracted serious  attention  at  the  trial'' — the  lie  that  "it 
does  not  appear  that  any  such  question  was  tried"  [the 
question  of  the  fraud  of  the  Newmans  in  getting  Mr. 
Levinson's  signature  to  the  articles  in  question.]  Both 
these  statements  are  deliberate  lies.  That  which  the 
Justices  say  "does  not  appear"  does  appear  in  the  re- 
cord and  as  clearly  and  as  fully  as  it  could  appear  in 
any  case  and  in  the  only  way  it  could  lawfully  appear. 


The  six  Justices,  who  expressly  joined  in  the  decis- 
ion, have,  indeed,  been  carried  by  their  lying  as  to  Mr. 
Levinson's  mental  capacity  into  a  ludicrous  predica- 
ment. Three  of  them,  Garoutte,  Van  Fleet  and  Mc- 
Farland,  declare  positively,  and  profess  to  reason  it  out, 
that  the  partnership  articles  did  give  the  Newmans  the 
right  to  purchase  Mr.  Levinson's   interest  in  the   firm 


535 

after  his  death.  The  three  others,  Beatty,  Temple  and 
Henshaw,  declare  with  equal  positiveness,  and  profess 
to  reason  it  out,  that  the  partnership  articles  did  not 
give  any  such  right.  All  six  of  these  Justices  declare 
that  Mr.  Levinson  had  mental  capacity  to  understand 
and  that  he  did  understand  the  partnership  articles. 
From  this  it  appears  that  the  three  Justices,  Garoutte, 
McFarland  and  Van  Fleet,  deem  the  Justices,  Beatty, 
Temple  and  Henshaw,  lacking  either  in  mental  capac- 
ity or  ability  to  tell  the  truth,  or  both.  And  it  appears  also 
that  the  Justices,  Beatty,  Temple  and  Henshaw,  hold  the 
opinion  that  the  Justices,  Garoutte,  Van  Fleet  and  Mc- 
Farland, are  lacking  either  in  mental  capacity  or  abil- 
ity to  tell  the  truth,  or  both.  If  the  Father  of  Lies  has 
a  sense  of  humor  he  must  indeed  be  amused  at  such  an 
exploit. 


9.  The  Dishonest  Treatment  of  the  Ground  That 
the  Poyrtnership  Articles  Did  Kot  Constitute  a 
Contract  Giving  the  Kewmans  a  Right  to  Take 
Mr,  Levinson' s  Interest  in  the  Firm. 

This  is  in  the  part  of  the  decision  purporting  to  have 
been  written  by  Justice  Garoutte.  In  this  part  it  is 
asserted  that  the  secret  transfer  of  Mr.  Levinson's  in- 
terest in  the  firm  to  the  Newmans  was  the  right  of  the 
Newmans  given  them  by  the  articles  of  partnership  as 
a  contract. 

The  plaintiff's  brief  shows  that  the  language  of  the 
articles  neither  states  any  price  nor  prescribes  any 
method  for  arriving  at  the  price  for  which  the  surviving 


336 

partners  might  take  the  interest  of  a  deceased  partner. 
The  brief  also  states  the  settled  rule  and  principle  of 
law  that  the  fixing  upon  a  price  or  of  some  standard  for 
fixing  a  price  is  an  element  absolutely  essential  to  con- 
stitute a  contract  of  sale  or  a  contract  to  sell,  and 
quotes  extensively  the  authorities,  all  of  which  declare 
that  in  the  absence  of  such  agreement  as  to  the  price, 
there  is  no  contract  binding  on  either  party  or  giving 
either  party  any  right. 

In  the  part  of  the  decision  last  mentioned  the  rule  or 
principle  of  the  law  of  contracts  which  is  decisive  of  it, 
is  studiously  and  with  manifest  dishonesty  avoided  in 
most  of  the  discussion,  and  where  nearest  approached  is 
deliberately  lied  about  by  such  expressions  as  ''The 
actual  value  of  a  piece  of  merchandise  can  be  deter- 
mined"— "that  a  sale  to  the  surviving  partners  in  case 
of  the  death  of  one  of  the  firm  was  in  the  minds  of  all 
partners  when  the  contract  was  made  does  not  admit  of 
doubt."  This  is  the  language  of  the  very  men  who  at 
the  same  time  did  say:  "As  a  salient  circumstance 
bearing  upon  Levin  son's  mental  capacity,  it  may  be 
noticed  that  some  few  days  thereafter  he  executed  his 
last  will  and  testament,  the  will  under  which  this  ad- 
ministrator is  now  acting  in  prosecuting  this  litigation." 
But  as  the  plaintiff 's  brief  points  out,  this  very  will, 
made,  as  they  say,  "some  few  days  thereafter,"  provides 
for  a  continuation  of  the  testator's  interest  in  the  firm 
to  be  held  and  carried  on  after  his  death  for  the  benefit 
of  his  estate,  showing  af&rmatively  that  the  testator  had 
no  thought  of  "a  sale  to  the  surviving  partners."  The 
whole  treatment  of  this  ground  of  the  appeal  in  this 
part  of  the  decision  displays  extreme  falsehood,  and 
dishonesty  of  intention   in  its  authors. 


337 

The  Single  Truthful  Spot  in  the  Decision. 

It  is  on  this  point,  which  the  decision  states  *'is  of 
course  the  main  question  in  the  case,"  that  the  three 
Justices,  Wm.  H.  Beatty,  Frederick  W.  Henshaw  and 
Jackson  Temple,  dissent  from  the  other  three.  In  their 
dissent  they  state  the  truth  with  clearness,  saying  (See 
the  Appendix  pp.  69,  70,  74). 

"  The  testator's  contract  did  not  determine  the  amount  of 
the  consideration  to  be  rendered  by  the  survivor  for  his  in- 
terest, and  the  exercise  of  a  further  act  of  discretion, 
judgment  and  assent  was  necessary  to  ascertain  the  amount 
*  *  in  making  the  adjustment  with  defendants  the  exec- 
utor necessarily  suppHed  the  missing  terms  of  his  testator's 
contract  by  the  exercise  of  his  own  will  and  discretion." 

"  The  provisions  of  the  articles  for  the  transfer  of  Levin- 
son's  interest  were  incomplete  in  that  no  price  was  fixed 
and  that  no  disinterested  person  was  named  who  should  fix 
the  price. ' ' 

"We  are  forced  to  believe  in  this  case  that  the  articles  of 
copartnership  failed  to  provide  effectually  for  a  transfer  of  the 
interest  of  Levinson's  estate  in  the  copartnership  to  the 
surviving  partners." 

"  For  the  lack  of  such  method  [method  of  arriving  at  a 
price]  the  transfer  to  the  Newmans  was  unauthorized  and 
void." 

This  admission  of  the  three  Justices,  Beatty,  Henshaw 
and  Temple,  that  ^'  the  articles  of  copartnership  failed 
to  provide  effectually  for  a  transfer  of  the  interest  of 
Levinson's  estate  in  the  copartnership  to  the  surviving 
copartners,"  and  that  "  the  transfer  to  the  Newmans 
was  unauthorized  and  void,"  and  the  reasons  they  give 
for  it  constitute  the  single  and  only  truthful  spot  in  the 
decision.  And  if  given  its  rightful  effect,  this  admission 
would  of  itself  have  entitled  the  administrator  of  Mr. 
Levinson's  estate  to  everything  claimed  by  him  in  the 


338 

suit.  But,  the  three  Justices  (Beatty,  Temple  and  Hen- 
shaw),  in  order  to  deny  and  prevent  that  rightful 
effect  have  set  up  the  infamous  lies  about  the  law 
which  are  pointed  out  in  the  divisions  lo,  ii,  and  12  of 
this  chapter. 


The  Lies  About  the  Law. 


10.     The    Outrageous  Lie  About    the    Law    of 

Estoppel, 

These  three  Justices,  Wm.  H.  Beatty,  Jackson  Tem- 
ple and  Frederick  W.  Henshaw,  say  that  ^'  the  transfer 
to  the  Newmans  was  unauthorized  and  void,''  but  that 
it  was  afterwards  made  good  by  estoppel.  They  assert 
that  the  estoppel  was  created  by  the  act  of  Mrs.  Levin - 
son  and  her  daughters  in  obtaining  from  the  executor 
on  November  13,  1 891,  by  means  of  a  decree  of  partial 
distribution  obtained  by  them  from  the  Probate  Court, 
$9,000  of  the  money  the  executor  had  received  from 
the  two  Newmans,  in  conjunction  with  the  fact  that  the 
sum  which  the  executor  had  received  was  the  fair  value 
of  the  interest  of  Mr.  Levinson  in  the  firm,  and  that 
the  transfer  to  the  two  Newmans  was  not  fraudulent, 
and  the  further  fact  that  Mrs.  Levinson  and  her  daugh- 
ters, at  the  time  they  so  obtained  that  money  from  the 
executor,  knew  that  he  had  obtained  it  from  the  two 
Newmans  as  the  price  of  a  sale  made  by  him  of  Mr. 
Levinson's  interest  in  the  firm  to  the  Newmans.  I  will 
show  presently  that  the  three  Justices  lie  most  shame- 
fully in  asserting  such  to  be  the  facts.     But  here  I  wish 


I 


339 


to  point  out  that  even  if  the  facts  had  been  all  that  the 
three  Justices  assert,  still,  to  say  that  such  facts  con- 
stitute an  estoppel  is  to  lie  most  scoundrelly  about  the 
law.  Their  language  setting  up  so  infamously  false  a 
pretense  may  be  seen  on  p.  71  of  the  Appendix. 

The  law  of  estoppel  is  thoroughly  settled  in  this  State, 
and  indeed  in  every  State  of  this  nation.  And  here  are 
some  of  its  essential  elements  as  laid  down  and  applied 
over  and  over  again  in  the  decisions  of  the  Supreme 
Court  of  California. 

In  Watson  v.  Sutro  (^(^  Cal.  526),  the  Supreme  Cotirt 
said : 

"  Without  the  element  of  deceit  there  can  be  no 
estoppel." 

In  Davis  v.  Davis  (26  Cal.  40),  the  Supreme  Court 
said  : 

''  In  order  to  create  an  equitable  estoppel  there 
must  be  an  admission  intended  to  influence  the 
conduct  of  the  man  with  whom  the  party  is  dealing 
and  actually  leading  him  into  a  line  of  conduct 
which  would  be  prejudicial  to  his  interest  unless 
the  party  estopped  be  cut  off  from  the  power  of 
retraction." 

In  Parish  v.  Coon  (40  Cal.  51),  the  Supreme  Court 
said  : 

'^  Equitable  estoppels  are  founded  solely  on  the 
theory  that  to  permit  the  party  to  maintain  the 
right  which  he  asserts  would  operate  as  a  legal 
fraud  on  his  adversary." 

In  Barnhart  v,  Fulkerth  (93  Cal.  499) ,  the  Supreme 
Court  said : 

*'  One  of  the  necessary  elements  of  the  estoppel 
is  that  the  party  setting  it  up   must  have  been 


340 

actually  induced  to  do  a  certain  act  by  the  conduct 
'  or  directions  of  the  party  sought  to  be  estopped." 

In  McCormick  v.  Orient  Ins.  Co.  (^6  Cal.  263)  the 
Supreme  Court  said : 

**An  essential  element  of  estoppel  *  *  is  that 
one  party  should  have  relied  upon  the  conduct  of 
the  other  and  been  induced  by  it  to  put  himself  in 
such  a  position  that  he  would  be  injured  if  the 
other  should  be  allowed  to  repudiate  his  action." 

In  Pomeroy's  Equity  Jurisprudence,  Section  804,  it  is 
stated  that  to  constitute  an  estoppel  there  must  have 
been  voluntary  conduct  by  the  party  estopped  upon 
which  the  other  party  has  relied  in  good  faith  and  by 
which  he  has  been  led  to  change  his  position  for  the 
worse. 

Now,  how  could  there  be  any  possibility  of  estoppel 
from  such  facts  as  the  Justices  Beatty,  Henshaw  and 
Temple  assert  ? 

The  executor  had  sold  Mr.  Levinson^s  interest  in  the 
firm  to  the  two  Newmans  on  September  6,  1890.  On 
that  day  he  received  half  the  price.  He  received  the 
other  half  on  or  before  February  26,  1891.  All  this 
is  conceded.  All  that  the  Newmans  had-  done  in 
paying  the  money  to  the  executor  had  been  com- 
pleted many  months  before  Mrs.  Levinson  and  her 
daughters  had  applied  Ifor  a  cent  of  it.  When 
once  the  Newmans  had  paid  the  money  to  the  exec- 
utor they  had  no  further  control  over  any  of  it.  They 
had  paid  it  voluntarily  and  could  not  in  any  event 
recover  it.  They  knew  when  they  paid  it  that  Mrs. 
Levinson  and  her  daughters  would  not  consent  to  their 
receiving  Mr.  Levinson's  interest  in  the  firm  for  any 
such  sum.     And  at  the  very  time  the  order  for  the 


341 

$gpoo  from  the  executor  was  obtained  from  the  Probate 
Court  the  Newmans'  attorneys  were  present  and  were 
then  told  what  they  knew  all  along,  that  Mrs.  Levinson 
and  her  daughters  would  not  consent  to  any  transfer  of 
Mr.  Levinson's  interest  in  the  firm  to  them  for  any  such 
sum.  And  at  the  very  time  the  order  for  the  executor 
to  pay  the  $9,000  was  made  the  Newmans  had  in  their 
pockets,  out  of  Mr.  Levinson's  interest  in  the  profits  of 
the  firm  produced  between  his  death  and  that  time,  no 
less  than  $22,288.64,  a  great  deal  more  money  than  all 
they  had  paid  to  the  executor.  All  this  is  clearly 
pointed  out  in  the  plaintiff's  brief  and  was  well  known 
to  the  Justices  Beatty,  Henshaw  and  Temple  when  they 
wrote  their  decision.  Now,  where  is  the  deceit  practiced 
by  Mrs.  Levinson  and  her  daughters  on  the  Newmans? 
"  Without  the  element  of  deceit  there  can  be  no 
estoppel."  Where  is  there  is  any  conduct  of  Mrs.  Lev- 
inson and  her  daughters  leading  the  Newmans  to  any 
course  of  conduct  on  their  part  ?  Where  is  the  fraud 
of  Mrs.  Levinson  and  her  daughters  on  the  Newmans  ? 
Where  is  this  "  one  of  the  necessary  elements  of  the 
estoppel ''  ? 

One  of  the  decisions  shown  to  the  Justices  was 
Fledge  vs.  Garvey  47,  Cal.  377.  There  a  guardian — 
whose  position  is  precisely  like  that  of  an  executor  or 
administrator — had  made  a  void  sale  of  land,  and  the 
ward  had  with  full  knowledge  of  the  facts  received  the 
purchase  money.  The  Supreme  Court  declared  that 
there  was  no  estoppel  and  said: 

"The  purchaser  at  the  guardian's  sale  paid  the 
purchase  money  to  the  guardian,  but  he  had  no 
control  over  or  responsibility  for  its  application  by 
the  guardian,  and  of  course  cannot   aver  that  in 


342 

making  the  purchase  he  was  influenced  in  any 
manner  by  the  subsequent  application  of  the  pur- 
chase money." 

Many  other  decisions  to  the  same  effect  were  shown 
these  Justices.  They  proceeded  with  their  eyes  open. 
They  deliberately  and  villainously  and  most  basely  and 
wickedly  lied  about  the  law. 


11.  The  Lie  That  the  Kewmcuns  Had  the  Right 
to  Demand  Baek  the  Money  From  the  Exec- 
utor. 

The  particular  falsehood  of  the  decision  here  referred 
to  may  be  seen  on  page  74  of  the  Appendix.  It  is  a 
deliberate  and  most  villainous  lie  about  the  law,  with 
an  attempt  to  conceal  it  by  impudently  lying  about  the 
facts.  It  is  a  settled  and  familiar  rule  of  law,  which 
has  been  applied  over  and  over  again  by  the  Supreme 
Court  of  this  State  for  more  than  thirty  years,  that 
no  person  has  a  right  to  recover  money  which  he  has 
paid  voluntary  and  with  a  knowledge  of  the  facts.  The 
Justices,  by  saying  ^^  the  money  was  not  voluntarily 
paid  after  the  protest  was  made,  but  was  forced  by  the 
legatees,"  show  that  they  had  this  rule  of  law  in  mind 
while  writing  their  decision.  The  sentence,  "  The 
money  was  not  voluntarily  paid  after  the  protest  was 
made,  but  was  forced  by  the  legatees,"  is  an  impudent 
and  villainous  lie  about  the  facts.  The  money  was  not 
paid  at  all  b}^  the  Newmans,  not  a  cent  of  it,  ''  after  the 
protest  was  made,"  or  after  Mrs.  Levinson  had  applied 
for  the  $9,ooOr  The  money  had  all  been  voluntaril}; 
paid  by  the  Newmans  to   the   executor  many    months 


343 

before.  The  payment  of  the  money  by  the  Newmans 
was  never  "  forced  by  the  legatees,"  but  was  paid  vol- 
untarily and  without  so  much  as  the  knowledge  of  the 
legatees.  All  this  the  Justices  well  knew  while  writing 
their  decision.  Besides,  as  already  mentioned,  the 
Newmans  then  had  in  their  hands  a  great  deal  more 
money  belonging  to  Mr.  Levinson's  estate  than  all  they 
had  paid  to  the  executor — a  fact  about  which  the 
authors  of  the  decision  are  dishonestly  silent.  If  the 
Newmans  could  have  taken  the  money  back  from  the 
executor,  why  did  they  not  do  so  at  the  time  of  ^'  the 
protests  of  the  executor  and  the  two  Newmans "  ? 
Were  the  Newmans  then  '*  forced  by  the  legatees  "  ? 
They  did  not  take  the  money  back  because  they  were 
not  entitled  to  a  cent  of  it  either  legally  or  morally. 
The  executor  could  not  have  paid  it  to  them  without 
being  punishable  for  contempt  of  the  Probate  Court, 
and  for  embezzlement  of  the  money.  The  assertion 
that  they  had  any  right  to  receive  back  the  money  they 
had  paid,  either  legally  or  morally,  is  a  deliberate,  a 
most  outrageous  and  villainous  lie  about  the  law  and 
about  the  facts.  See  the  clear  statement  of  the  law  in 
Fledge  vs.  Garvey^  quoted  on  pages  341-2  above. 

The  extreme  dishonesty  of  setting  up  such  a  ground 
for  the  decision  is  well  illustrated  bv  the  freedom  with 
which  the  executor  was  allowed  to  pay,  on  September 
the  nth,  1890,  out  of  the  money  he  had  received  from 
the  Newmans,  the  sum  of  $4,222.00  to  a  creditor  of  the 
Levinson  estate.  From  the  time  he  made  that  pay- 
ment, it  was  of  course  impossible  for  him  to  return  to 
the  Newmans  the  money  he  had  received  from  them. 
No  objection  was  made  to  that  payment,  and  for  the 
plain  reason   that   the   Newmans  and  their  attorneys 


344 

fully  understood  that  from  the  time  they  paid  the 
money  to  the  executor,  it  was  none  of  their  business 
what  he  should  do  with  it.  No  pretense  is  made  that 
that  payment  created  an  estoppel^  and  plainly  for  the 
same  reason.  Why,  then,  did  the  executor  and  the 
Newmans  oppose  the  payment  of  a  part  of  the  money  to 
the  deceased  partner's  family,  when  such  payment  was 
requested  more  than  a  year  afterwards  ?  The  answer 
is  plain.  The  sole  and  only  motive  was  to  oppress  and 
cripple  the  dead  partner's  family,  to  subdue  them  by 
withholding  their  own  from  them  and  reducing  them  to 
penury. 

The  reader  will  notice  also  the  scoundrelly  trickery 
with  which  the  falsehoods  of  the  decision  last  mentioned 
are  uttered.  It  is  the  same  trickery  of  covert  assumption 
which  was  so  freely  indulged  in  in  the  judgment  of  dis- 
barment, the  covert  and  outrageously  false  a^td  disho7iest 
assumption  that  the  money  received  by  Mrs.  Levinson 
and  her  daughters  from  the  estate  in  November,  1891, 
"  was  forced  by  the  legatees"  yr<9;;^  the  Newmans.  This 
is  the  covert  assumption  of  an  outrageous  falsehood. 
The  money  was  then  in  the  estate  of  John  Levinson, 
and  was  legally  and  morally  a  part  of  that  estate.  The 
Newmans  had  no  right  to  it  or  control  over  it,  either 
legally  or  morally.  It ''  was  forced"  from  the  executor, 
not  from  the  Newmans. 


12.    The  Outrageous  Lie  About  the  Law  of  Rati- 

ficaMon. 

The  particular  falsehood  of  the  decision  here  referred 
to  may  be  seen  on  page  75  of  the  Appendix.  It  is  an 
outrageous  lie  about  the  law  of  ratification.     The  three 


345 

Justices  themselves  say,  "The  transfer  to  the  Newmans 
was  unauthorized  and  void."  It  is  the  settled  law  that 
a  void  act  cannot  be  ratified.  It  is  the  settled  law,  too, 
that  a  ratification  can  be  made  only  in  the  manner  that 
would  have  been  necessary  to  confer  an  original  author- 
ity for  the  act  ratified;  and  the  only  way  by  which  the 
executor  could  have  been  given  authority  to  make  the 
transfer  to  the  Newmans  would  have  been  a  written 
petition  to  the  Probate  Court  and  an  order  of  the  Pro- 
bate Court  authorizing  the  transfer.  And  the  Statute 
of  this  State  (C.  P.  Sec.  15 17)  says: 

"  No  sale  of  any  property  of  an  estate  of  a 
decedent  is  valid  unless  made  under  order  of  the 
Superior  Court.  *  *  All  sales  must  be  under  oath 
reported  to  and  confirmed  by  the  Court  before  the 
title  to  the  property  sold  passes."  ' 

The  unspeakable  dishonesty  of  the  authors  of  the 
decision  in  making  the  assertions  last  stated,  is  shown 
also  by  the  decision  of  the  same  Court  in  bank  on  June 
9,  1893,  in  the  case  of  Wallace  vs.  Stsson.  That  decis- 
ion may  be  seen  in  Vol.  33  Pacific  Reporter  at  p.  496. 
The  case  was  as  follows:  Mr.  Wallace,  one  of  the  part- 
ners in  the  firm  of  Sisson,  Wallace  &  Co.,  died.  His 
widow,  as  administratrix  of  his  estate,  made,  through 
the  Probate  Court,  an  open  and  legal  sale  of  his  inter- 
est in  the  firm  to  the  surviving  partners.  In  making 
the  sale  she  protested  that  the  surviving  partners 
should  have  made  a  further  allowance  for  the  good  will 
of  the  business  and  for  an  interest  in  certain  contracts 
which  they  claimed  did  not  belong  to  the  firm.  She, 
however,  made  the  sale  and  received  the  purchase  price. 
The  money  so  paid  was  thereupon  distributed  to  the 


346 

heirs  by  the  Probate  Court,  and  was  received  by  her 
and  the  other  heirs.  Afterwards  she  and  the  other 
heirs  sued  the  surviving  partners  for  a  full  accounting. 
The  Supreme  Court  decided  that  she  was  entitled  to  the 
accounting,  and  without  paying  back  a  cent  of  what 
had  been  received.  The  Justices  Wm.  H.  Beatty, 
Ralph  C.  Harrison,  Charles  H.  Garoutte  and  Thomas 
B.  McFarland  all  took  part  in  that  decision  and  there 
said: 

"  If  it  be  true  that  there  was  concealment  or 
misrepresentation,  that  all  that  was  valuable  was 
not  brought  into  the  transaction,  that  something 
was  withheld  that  should  have  been  estimated,  can 
it  be  said  that  before  she  can  have  the  wrong  cor- 
rected she  must  refund  to  the  defendants  all  that 
she  has  received,  when  she  could  not  receive,  hold, 
own  and  control  what  she  had  parted  with,  and 
which  defendants  retained,  and  that  a  court  of 
equity  cannot  compel  them,  without  such  rescission 
and  surrender,  to  account  for  that  in  which  she 
had  an  interest,  and  which  was  not  brought  into 
the  accounting  upon  which  the  settlement  was  had  ? 
Even  if  it  were  necessary  to  set  aside  the  agree- 
ment, it  could  not  be  necessary  that  the  money 
paid  should  be  refunded.  It  is  not  claimed  that 
defendants  were  in  any  manner  deceived  or 
wronged,  or  that  they  have  paid  money  that  plaint- 
iffs were  not  in  any  event  entitled  to.  The  law 
does  not  require  idle  or  unnecessary  acts  to  be  per- 
formed, and  surely  it  cannot  be  necessary  that 
plaintiffs  should  put  back  in  defendants'  hands  the 
money  they  have  in  order  that  they  may  recover 
it  back  with  other  moneys  in  addition  thereto. 
These  views  are  fully  sustained  by  the  authorities 
[citing  authorities].  But  in  strictness  this  is  not 
an  action  for  a  rescission,  nor  is  a  rescission  nec- 
essary." 


'  347 

The  Suppression  of  Wallace  vs.  Sisson  From  the 
California  Reports, 

The  decision  in  Wallace  vs.  Sisson^  though  made  by 
the  Court  in  bank,  and  though  clearly  a  very  important 
decision  upon  the  rule  of  law  stated  in  it  in  the  passage 
above  quoted,  was  not  placed  in  the  California  Reports. 

The  reason  for  this  is  probably  similar  to  that  for 
which  the  decision  in  Heckman  vs.  Swett  was  mutilated 
(as  stated  on  pages  60-62  above),  namely,  to  avoid  hav- 
ing it  cited  as  an  authority  in  the  suit  of  the  adminis- 
trator of  John  Levinson's  estate  against  the  two  New- 
mans, which  was  then  being  taken  on  appeal  to  the 
same  Court. 

But  this  decision  of  the  case  of  Wallace  vs.  Sisson  is 
cited  in  the  plaintiff's  brief,  with  many  other  author- 
ties  showing  the  Newmans  entitled  to  no  repayment. 
All  these  authorities  were  clearly  pointed  out  to  the 
authors  of  the  decision  for  the  two  Newmans. 


The  Inability  to  Cite  Any  Authority. 

The  Justices  W.  H.  Beatty,  Jackson  Temple  and  F. 
W.  Henshaw  could  and  did  cite  authorities  in  deciding 
that  the  language  of  the  partnership  articles  gave  the 
Newmans  no  right  to  take  the  interest  of  their  deceased 
partner,  and  they  could  ci'te  authorities  for  their  ruling 
in  Wallace  vs.  Sisson.  But  they  do  not  even  pretend 
to  cite  any  authority  for  what  they  so  scoundrelly  as- 
sert as  the  law  of  estoppel,  and  as  the  law  that  one  vol- 
untarily paying  money  with  a  knowledge  of  all  the 
facts  has  a  right  to  demand  it  back  even  though  it  is  far 


348 

less  than  what  he  is  at  the  time  bound  to  pay  over  to 
the  same  person,  or  as  to  the  law  of  ratification. 
Though  they  make  this  the  very  turning-point  of  the 
whole  case,  they  do  not  even  pretend  to  cite  authority. 
This  is  because  they  could  not  cite  authority,  and  they 
knew  it.  They  were  deliberately  and  most  out- 
rageously and  wickedly  lying  about  the  law. 


I  now  again  invite  particular  attention  to  the  three 
points  last  mentioned,  namely,  the  pretense  that  the 
Newmans  had  a  right  to  demand  back  the  money  they 
had  paid  to  the  executor;  the  pretense  that  the  receipt 
of  part  of  that  money  by  Mrs.  Levinson  and  her 
daughters  under  a  decree  of  the  Probate  Court  partially 
distributing  the  Levinson  estate  made  the  secret  and 
void  sale  valid  by  ratification;  and  the  pretense  that 
such  receipt  of  part  of  that  money  by  those  legatees 
was  an  estoppel  of  the  administrator's  right  to  have  an 
accounting.  Those  pretenses,  as  set  forth  in  the  final 
decision,  may  be  seen  on  pages  71,  74-75  of  the  Appen- 
dix. There  is  not  an  American  or  an  English  lawyer, 
worthy  the  name  of  lawyer,  who  will  not  see  even  at  a 
glance  that  every  one  of  those  pretenses  is  an  outra- 
geous lie  about  the  law. 


The  Lies  About  the  Facts, 

The  three  Juj>tices,  Wm.  H.  Beatty,  Frederick  W. 
Henshaw  and  Jackson  Temple,  in  order  to  form  a  lying 
basis  for  their  law  of  estoppel,  also  lie  most  impudently 
and  villainously  about  the  facts.  Let  us  take  note  of 
some  of  these  particular  lies. 


349 

13.  The  Impwdent  Lie  That  the  Answer  Filed  by 
the  JVewmans  in  the  Frohate  Court  in  JVovem- 
ber,  1891,  Disclosed  the  Sale  of  Their  De- 
ceased Fartner's  Interest  in  the  Firm  to  Them. 

They  assert  (and,  as  if  seeking  to  strengthen  the 
language,  they  put  it  in  italics)  that  the  language 
shown  on  pages  38-39  above,  in  an  answer  of  the  New- 
mans filed  November  20,  1890,  in  the  Probate  Court, — 
they  assert  that  that  language  was  "that  executor 
Raveley  had  accepted  from  the  surviving  partners  their 
notes  for  $20,790.80  in  full  payment  for  his  testator's 
interest  in  the  copartnership."  Their  assertion  is,  as 
an  inspection  of  the  language  will  show,  utterly  false. 
The  language  of  that  answer  states  only  that  the  New- 
mans had  executed  the  notes  "  in  full  payment  and 
discharge  of  the  interest  of  said  decedent  in  said  copart- 
nership," etc.  It  said  nothing  whatever  as  to  what  the 
executor  had  done.  This  distinction  is  obvious  and  is 
illustrated  by  the  decision  of  the  Supreme  Court  of  this 
State  in  Jamison  v.  Simon.,  (^Z  Cal.  17,  where  it  was 
ruled  that  to  say  that  a  seller  of  goods  has  delivered  the 
goods  to  the  buyer  is  not  saying;  that  the  buyer  has 
received  and  accepted  the  goods  ;  that  to  say  that  the 
seller  has  delivered  the  goods  says  nothing  as  to  the 
position  taken  by  the  buyer.  For  all  that  that  answer  dis- 
closed, the  executor  might  have  received  the  notes  only 
on  account,  leaving  the  question  open  as  to  whether 
anything  more  was  to  be  obtained.  This  was  what 
Mrs.  Levinson  and  her  daughters  supposed  was  the 
case  and  what  the  executor  continued  to  represent  as 
the  case.  See  on  p.  31-32  above  the  language  of  the 
executor's  answer  filed  in  November,  1891,  to  the  peti- 


350 

tion  of  Mrs.  Levinson  and  her  daughters  for  part  of  the 
money  in  his  hands.  Now,  the  plaintiff 's  brief  points 
out  that  the  answer  of  the  Newmans  did  not  state  any 
act  or  intention  of  the  executor.  The  three  Justices,  in 
their  false  assertion  on  this  point,  have  deliberately 
and  intentionally  falsified  the  plain  truth. 

Besides,  Mrs.  Levinson  and  her  daughters  had  the 
promise  of  Ralph  C.  Harrison  that  Mr.  Philbrook,  the 
attorney  whom  they  had  employed,  "should  be  notified  of 
any  step  which  should  be  taken  in  regard  to  the  inter- 
est of  the  estate  in  the  partnership,"  and  the  fact  that 
no  notice  or  information  was  given  was  a  continual 
assurance  that  no  transfer  to  the  Newmans  had  been 
made.  All  this  was  before  the  Justices  while  writing 
their  decision. 

This  falsehood  of  the  Chief  Justice,  Wm.  H.  Beatty, 
concurred  in  by  Justices  Temple  and  Henshaw,  was 
uttered  by  them  with  evil  motive.  As  they  well  knew, 
that  answer  of  the  Newmans  was  not  filed  until  seventy- 
five  days  after  the  transfer  had  been  made  to  them  by 
the  executor  ;  and  even  if  it  had  fully  disclosed  all  that 
the  three  Justices  assert,  the  sole  effect  of  the  disclosure 
would  have  been  to  enable  Mrs.  Levinson  and  her 
daughters  to  demand  the  removal  of  the  executor  a  year 
earlier  than  they  did.  The  three  Justices,  in  fact,  con- 
fess this  in  another  part  of  the  decision,  in  trying  to 
make  out  that  the  secrecy  of  the  transaction  was  harm- 
less (seethe  Appendix,  p.  65). 

The  reader  will  notice  the  mingled  trickeries  of 
covert  assumption  and  ij^relevant  argument  accompany- 
ing the  falsehoods  of  the  decision  last  mentioned.  If 
the  Newmans'  answer  filed  in  the  Probate  Court  had  in 
fact  disclosed  the  sale,  the'  only  possible  effect  would 


351 

have  been  to  exhibit  themselves  as  more  brazen.  The 
disclosure  would  have  been  in  every  other  respect  with- 
out the  least  importance.  Behold,  then,  the  trickery  of 
Wm.  H.  Beatty,  the  Chief  Justice,  in  covertly  assuming 
that  such  a  fact  would  have  been  important. 


IJf'  The  Lie  That  Mrs.  Levinson  and  Her  Daugh- 
ters, When  They  Received  the  Money  From  the 
Executor  ,  Knew  of  the  Transfer  to  the  J^ew- 
mans. 

The  three  Justices,  Wm.  H.  Beatty,  Frederick  W. 
Henshaw,  and  Jackson  Temple,  also  assert  that  when 
the  order  for  the  $9,000  was  obtained  by  Mrs.  Levinson 
and  her  daughters  "the  circumstances  under  which  it 
had  been  paid  over  to  the  estate  and  the  claims  of  the 
Newmans  in  regard  thereto  were  well  known  to  them." 
In  making  this  assertion  they  deliberately  and  villain- 
ously lied.  There  is  not  a  particle  of  evidence  in  sup- 
port of  their  assertion;  the  proof  of  the  very  contrary  of 
their  assertion  is  full  and  without  contradiction,  and 
they  well  knew  this  while  writing  their  decision.  In- 
deed, the  very  answer  with  which  the  executor  opposed 
the  order  of  partial  distribution — an  answer  which  the 
Newmans  themselves  urged  by  their  attorneys  M.  S. 
Eisner  and  E.  R.  Taylor — that  answer  did  not  pretend 
that  the  money  had  been  received  upon  a  transfer  of 
the  interest  of  the  deceased  partner  to  the  two  New- 
mans (See  the  language  of  the  answer  shown  on  pp. 
43-4  above).  And  that  answer  was  before  the  Justices 
while  writing  their  decision. 


352 

Accompanying  this  falsehood  in  the  decision,  there  is 
the  covert  assumption  that  if  Mrs.  Levinson  and  her 
daughters  had  known  of  the  sale  when  they  received 
the  money  from  the  executor  under  the  decree  of  partial 
distribution,  such  receipt  of  the  money  would  have  con- 
stituted an  ^j/^//^/ and  a  ratification  of  the  sale.  As 
pointed  out  above,  it  is  the  covert  assumption  o'f  that 
which  is  only  an  outrageous  lie  about  the  law.  The 
importance,  and  the  only  importance  of  the  fact  that 
knowledge  of  the  sale  was  withheld  from  Mrs.  Levin- 
son  and  her  daughters  is  in  the  evidence  it  furnishes  of 
a  fraudulent  intent  on  the  part  of  the  executor  and 
Ralph  C.  Harrison  and  the  Newmans. 


15     The  Lie  That  the  Price  Paid  hy  the  Jfew- 
mans  Was  Fair. 

The  setting  up  of  the  particular  falsehood  here  re- 
ferred to  may  be  seen  on  page  71  of  the  Appendix. 

The  deliberate  falsehood  of  these  assertions  that  the 
price  was  fair,  are  manifest  for  the  following  reasons: 
There  is  not  a  particle  of  evidence  in  support  of  such 
an  assertion.  Besides,  the  Justices  making  these  as- 
sertions avow  that  ''the  transfer  to  the  Newmans  was 
unauthorized  and  void,"  and  was  without  support  in 
the  partnership  articles.  They  avow  that  it  was  solely 
a  transfer  by  the  executor  on  September  6,  1890.  That 
being  so,  the  price  could  not  be  fair  without  being  the 
value  of  the  interest  at  that  time.  Now,  William  J. 
Newman  himself  testifies  that  between  March,  1890, 
and  the  time  of  the  transfer,  the  McKinley  tariff  bill 
increased  the  value  of  all  the  goods  on  hand,  that  *'it 


353 

raised  the  profit  on  some  to  200  per  cent.,  and  on  some 
it  raised  the  profit  to  100  per  cent.,  and  all  the  way 
from  25  per  cent,  up.''  He  also  testifies  that  in  the 
same  period  many  goods  were  purchased  on  the  credit 
of  the  firm  and  at  a  price  allowing  a  large  profit.  Wm. 
J.  Newman  gave  this  testimony,  not  from  any  motive 
of  frankness,  but  in  an  effort  to  excuse  the  small  and 
trifling  allowance  made  by  him  and  his  brother  to  their 
deceased  partner's  estate  for  profits  earned  in  the  eight 
months  next  before  his  death,  in  comparison  with  the 
enormous  profits  which  the  two  Newmans  themselves 
continually  reaped  and  pocketed  from  the  time  they 
claimed  their  deceased  partner's  interest  as  their 
own.  It  was  only  in  their  effort  to  cover  one  fraud  that 
a  seam  in  their  cloak  parted  revealing  a  greater  fraud. 
Now,  an  allowance  for  an  increase  of  only  100  per  cent, 
on  only  the  goods  originally  on  hand  would  have  added 
not  less  than  $62,226.25  to  the  value  of  Mr.  Levinson's 
interest.  In  the  same  period  the  profits  earned  were 
something  more  than  $22,82940,  and  thirty  per  cent, 
of  that  sum  should  have  been  added  in  arriving  at  the 
value  of  Mr.  Levinson's  interest.  Nothing  whatever 
was  allowed  for  these  profits  nor  for  any  increase  in  the 
value  of  the  goods  nor  for  the  new  goods.  Still  further, 
the  enormous  asset  of  the  good  will  of  the  business  was 
avowedly  omitted.  All  this  was  before  the  Justices 
while  writing  their  decision.  In  asserting  that  the 
price  was  fair,  they  have  deliberately  and  outrageously 
lied. 


354 

16.  The  Lying  Treatment  of  the  Fraud  of  the 
JVewmans  and  of  the  Confederacy  of  Ralph 
C.  Harrison  and  the  Executor    With   Them. 

In  the  final  decision  for  the  two  Newmans  this 
ground  of  the  appeal  is,  in  the  part  purporting  to  have 
been  written  by  Justice  Garoutte,  turned  off  with  the 
following  words  (see  the  Appendix  p.  54): 

'*  Fraud  is  charged  in  the  body  of  plaintiff's  bill,  and 
upon  that  ground  relief  in  a  great  measure  is  sought.  But 
in  the  opinion  of  the  trial  Judge,  Hon.  W.  T.  Wallace, 
which  opinion  is  set  forth  in  the  record,  it  is  stated  that 
there  is  no  evidence  whatever  to  support  such  a  charge. 
And,  after  a  careful  examination  of  the  evidence,  we  find 
nothing  therein  even  tending  to  show  the  practice  of  any 
fraud  upon  the  heirs  and  legatees  of  the  dead  partner.  It 
follows  that  all  question  of  fraud  is  out  of  the  case.  " 

The  rank  dishonesty  of  turning  off  the  decision  of 
such  a  ground  in  such  a  case  by  the  bare  assertion  that 
*' after  a  careful  examination  of  the  evidence,  we  find 
nothing  therein  even  tending  to  show  the  practice  of 
any  fraud,"  is  manifest.  It  is  a  maxim  formed  from 
observation  extending  through  ages,  that  a  falsifier 
deals  in  generalities.  These  three  Justices  either  do 
not  question  the  facts  as  stated  in  the  plaintiff's  brief 
and  established  by  the  evidence  there  exhibited,  and 
only  assert  that  all  those  facts  amount  to  nothing — 
^'  even  tending  to  show  the  practice  of  any  fraud  ";  or 
else  they  assert  the  facts  to  be  as  stated  by  their  three 
associates,  Beatty,  Temple  and  Henshaw.  In  either 
view,  their  assertion  is  manifestly  only  a  deliberate 
and  gross  and  most  villainous  falsehood.  If  the  three 
Justices  thought  they  were  speaking  the  truth,  why  did 
they  not  state  the  facts  and  rest  their  assertion  on  the 
facts  ?       And   why,  except  from  the  consciousness  of 


355 

having  perpetrated  a  falsehood  too  weak  to  stand  alone, 
did  they  seek  to  bolster  it  up  by  saying  that  it  is  also 
*^  the  opinion  of  the  trial  Judge,  Hon.  W.  T.  Wallace, 
which  opinion  is  set  forth  in  the  record  "? 

A  decision  of  the  Supreme  Court,  the  appellate  court, 
should,  of  course,  be  based  exclusively  upon  the  facts 
of  the  case  and  the  honest  judgment  of  the  Judges  of 
the  Supreme  Court.  And  this  is  a  truth  so  plain  and 
fundamental  that  it  must  needs  be  recognized  spontane- 
ously by  any  intelligent  person  who  is  not  morally 
rotten.  An  opinion  asserted  by  the  Judge  from  whose 
action  the  appeal  is  taken  can  have  no  honest  place 
among  the  grounds  of  the  decision  of  the  Supreme 
Court.  It  cannot  be  used  as  part  of  the  grounds  for 
deciding  the  appeal  without  assuming  in  advance  that 
the  action  appealed  from  was  right,  and  thus  denying 
the  very  right  of  appeal.  But  more  than  once  the 
authors  of  the  final  decision  for  the  two  Newmans  have 
dragged  in  such  false  support  to  bolster  up  their  out- 
rageously lying  assertions.  For  instance,  they  say,  "as 
said  by  the  trial  Judge" — '*asthetrial  Court  held."  Those 
expressions  were  used  for  the  same  purpose  as  in  the 
passage  last  quoted,  "  But  in  the  opinion  of  the  trial 
Judge,  Hon.  W.  T.  Wallace,  which  opinion  is  set  forth 
in  the  record,  it  is  stated  that  there  is  no  evidence  what- 
ever to  sustain  such  a  charge."  The  use  of  those  ex- 
pressions is  similar  in  principle  to  the  conduct  of  their 
authors  in  putting  a  mass  of  new  accusations  into  their 
decision  disbarring  the  attorney,  as  pointed  out  on 
pages  124-126  of  this  paper. 

The  cunning  reason  for  thus  supporting  "  Hon. 
Ralph  C.  Harrison  ''  by  such  expressions  as  "  But  in 
the  opinion  of  the  trial  Judge,  Hon.  W.   T.  Wallace, 


356 

which  opinion  is  set  forth  in  the  record,  it  is  stated  that 
there  is  no  evidence  whatever  to  support  such  a  charge," 
is,  however,  to  be  recognized  easily.  It  is  because  of  a 
certain  well  known  popularity  which  Judge  Wallace 
had  at  the  time  among  many  well  meaning  and  earnest 
people — a  popularity  which  he  had  acquired  by  a  long 
course  of  skillful  playing  to  the  gallery — as  being  a 
man  who  would  oppose  the  evil  practices  of  The  South- 
ern Pacific  Company  and  their  allies,  if  he  only  had  the 
opportunity.  It  was  the  crafty  trickery  of  bolstering 
up  the  decision  with  that  popularity  of  '^  Hon.  W.  T. 
Wallace."  

But,  upon  the  question  of  the  fraud,  we  have  in  the  final 
decision  for  the  two  Newmans  far  more  than  the  gen- 
eralities and  flat  assertions  and  skillful  trickery  behind 
which  the  part  of  the  decision  purporting  to  have  been 
written  by  Justice  Garoutte  so  carefully  hides.  In  the 
part  written  by  Wm.  H.  Beatty,  the  Chief  Justice,  the 
details  are  given,  the  particular  grounds  upon  which 
those  generalities  and  flat  assertions  are  based.  And 
here  we  find  a  ver3^  revel  in  rank,  self-conscious  dishon- 
esty upon  dishonesty,  and  gross,  specific,  impudent  and 
outrageous  lies  after  lies.  In  this,  the  final  decision  for 
the  two  Newmans  resembles  the  judgment  of  disbarment. 
The  concurring  opinion  of  Wm.  H.  Beatty,  the  Chief 
Justice,  is  like  an  index  or  table  of  contents  of  the 
other.  He  stands  before  his  associates,  a  chief  in 
villainy  and  wickedness,  in  every  quality  characteristic 
of  the  foul,  degraded,  malicious,  cowardly  scoundrel. 

Some  of  the  particulars  in  which  this  appears  will 
now  be  pointed  out. 


357 

So  fully  is  Wm.  H.  Beatty,  the  Chief  Justice,  the 
index  of  the  authors  of  the  decision,  that  the  spirit  of 
malevolence  in  which  the  decision  was  written  emanates 
freely  in  the  words  he  uses.  Take,  for  instance,  the 
following  expressions  :  "  Mr.  Philbrook,  however,  seems 
to  think" — ''  the  matters  so  vehemently  and  intemper- 
ately  argued  on  the  part  of  the  appellant" — "  the  torrent 
of  vituperation  poured  out  upon  Mr.  Justice  Harrison" 
— "  Mr.  Philbrook's  tirade"—'^  Mr.  Philbrook  knows  the 
meaning  of  a  plain  statement  in  plain  English" — **  Mr. 
Philbrook's  suspicions" — "  Mr.  Philbrook  has  con- 
structed his  elaborate  theory  of  fraud  and  corruption" 
— "  the  absurdity  of  this  position" — *^  scarcely  credible 
that  a  normal  mind  could  regard  them  as  evidence  of 
fraud  " — "  rather  too  heavy  a  draft  upon  human  cre- 
dulity"— "  the  whole  question  of  fraud  and  corruption 
so  gratuitously  imported  into  the  case'' — etc.,  etc. 

Those  expressions  are  not  the  language  of  a  judge. 
They  are  the  language  of  a  slave,  a  tool  of  The  Southern 
Pacific  Company,  set  by  them  to  do  a  task — the  same 
task  to  which  he  was  set  in  the  disbarment  judgment. 
In  the  final  decision  for  the  Newmans,  Wm.  H.  Beatty, 
the  Chief  Justice,  seems  to  have  been  ordered  to  write  a 
separate  concurring  opinion  to  strengthen  that  which 
purports  to  have  been  written  by  Justice  Garoutte.  But 
a  concurring  opinion  is  supposed  to  diflfer  in  some  par- 
ticular, that  being  the  only  reason  why  it  is  written. 
So,  as  an  excuse  for  a  separate  opinion — to  give  his 
work  the  semblance  of  a  concurring  opinion — he  pre- 
tended to  differ  on  one  of  the  points,  and  in  so  doing 
admitted  that  ^'  the  transfer  to  the  Newmans  was  unau- 
thorized and  void  "  (see  the  Appendix,  p.  74).  As  he  was 
ordered  to  decide   for   the   Newmans,  he  then  turned 


358 

around  and  lied  like  a  pirate  to  nullify  the  rightful 
effect  of  what  he  had  thus  admitted.  He  obeyed  his 
orders  like  an  abject  slave,  uttering  impudent,  outra- 
geous lie  after  lie,  and  using  the  expressions  of  malice 
and  hate  of  which  those  quoted  above  are  examples,  as 
if  doing  his  utmost  to  show  himself  to  his  masters  as 
their  most  unscrupulous  henchman. 


17.    The  Lie  That  Ralph  C.Harrison  Was  JVot 
Attorney  for  Mrs.  Levinsonand  Her  Daughters. 

The  particular  falsehood  of  the  decision  here  referred 
to  may  be  seen  on  p.  63  of  the  Appendix. 

This  falsehood  was  contrived  by  The  Southern  Pacific 
Company,  was  published  by  them  in  The  Record- Union 
in  December,  1894.  in  their  editorials,  and  taken  thence 
and  placed  in  the  act  of  disbarment.  The  character  of 
the  falsehood  and  the  trickery  by  which  it  is  attempted 
to  support  it  in  the  decision,  are  stated  on  pages  244- 
245  above.  As  stated  on  pages  253-254  above,  it  is  in 
fact  a  confession  of  Justice  Harrison^s  guilt. 

Mrs.  Levinson  and  her  daughters  were  the  residuary 
legatees,  t.  e.^  they  took  the  remainder  of  the  estate 
after  payment  of  the  debts  and  the  legacy  of  $3,000, 
mentioned  above.  As  the  estate  was  sure  in  any  event 
to  pay  all  its  creditors  and  the  legacy  of  $3,000,  the 
only  persons  actually  interested  against  the  Newmans 
were  Mrs.  Levinson  and  her  daughters.  And  all  the 
expenses  of  administration,  including  the  executor^s 
compensation,  and  all  fees  paid  to  Ralph  C.  Harrison, 
fell    as    expenses,  solely  upon   Mrs.  Levinson  and  her 


559 

daughters,  because  they  were  residuary  legatees.  There- 
fore, the  executor  was,  as  against  the  Newmans,  trustee 
for  Mrs.  Levinson  and  her  daughters  and  for  them  alone. 
The  malevolent  dishonesty  of  the  authors  of  the  de- 
cision, in  their  treatment  of  this  point,  may  be  seen 
from  the  fact  that  they  themselves  take  the  extreme 
opposite  position  in  their  lying  pretenses  of  an  estoppel 
and  ratification — pretenses  discussed  in  subdivisions 
1 1- 13  of  this  chapter,  and  which  may  be  seen  on  pages 
71,  74-75  of  the  Appendix.  In  setting  up  those  pre- 
tenses, their  authors  make  the  interest  of  the  adminis- 
trator of  the  estate  to  be  absolutely  and  identically  the 
same  as  the  interests  of  Mrs.  Levinson  and  her  daugh- 
ters. So,  too,  in  the  part  purporting  to  have  been 
written  by  Justice  Garoutte  (Appendix  p.  54),  the 
money  paid  by  the  Newmans  to  the  executor  is  spoken 
of  as  *'  paid  by  the  surviving  partners  to  them^^  i.  e.^  to 
Mrs.  Levinson  and  her  daughters.  But,  to  make  out 
that  Ralph  C.  Harrison  was  not  the  attorney  for  Mrs. 
Levinson  and  her  daughters,  to  whitewash  Justice 
Ralph  C.  Harrison,  the  rascals  face  directly  about  (see 
p.  63  of  the  Appendix),  and,  with  impudent  lying, 
pretend  that  the  interest  of  the  executor  was  absolutely, 
independent  of  the  interests  of  Mrs.  Levinson  and  her 
daughters. 


18.  The  Lying  Pretense  That  Mrs.  Levinson 
and  Her  Daughters  Were  Independently 
*' Represented''  by  Another  Attorney. 

Examples  of  the  particular  falsehood  here  referred  to 
may  be  seen  on  pages  62  and  71  of  the  Appendix. 
It  is  the  effort  of  the  decision  to  inculcate  the  impres- 


360 

sioti  that  Mrs.  Levinson  and  her  daughters  were  inde- 
pendently "represented"  by  Mr.  Philbrook,  an  attorney 
of  their  own  choosing.  This  is  expressed  with  studious 
cunning  in  the  use  of  language.  When  the  Justices 
expressly  say  "represented,"  they  cunningly  add, 
'^throughout  all  Court  proceedings";  but  by  the  trick  of 
ignoratio  elenchi  (described  on  pages  149-154  above), 
of  which  the  language  quoted  under  the  next  preced- 
ing head  is  an  example,  and  by  the  studious  suppres- 
sion of  the  truth,  they  seek  to  make  it  appear  that  Mrs. 
Levinson  and  her  daughters  were  independently  repre- 
sented by  Mr.  Philbrook  so  that  Mr.  Harrison  was  un- 
der no  duty  to  them.     But  the  facts  are  as  follows: 

Up  to  March  17,  1890,  Mrs.  Levinson  and  her 
daughters  had  no  attorney  or  legal  adviser  except  such 
as  Ralph  C.  Harrison  necessarily  was  under  his  em- 
ployment as  the  attorney  for  Mr.  Levinson's  estate.  It 
was  in  that  period,  viz.:  on  March  5,  1890,  that  the  two 
Newmans,  on  the  secret  advice  of  Ralph  C.  Harrison, 
played  upon  Mrs.  Levinson  and  her  daughters  the  trick 
of  obtaining  from  them  the  letter  saying  "we  do  not 
desire  to  employ  any  third  person  to  assist  at  the  stock- 
taking and  inventory  of  the  assets  of  the  late  firm  of 
Newman  &  Levinson  now  in  progress."  Mrs.  Levin- 
son and  her  daughters  were  given  no  explanation 
whatever  of  the  purpose  of  that  letter.  It  was  simply 
a  trick  played  upon  them  for  the  benefit  of  the  New- 
mans. The  Justices  have  studiously  suppressed  Mr. 
Harrison's  agency  with  the  Newmans  in  obtaining  that 
letter. 

I  was  not  employed  by  Mrs.  Levinson  and  her 
daughters  until  March  17,  1890,  i,  ^.,  not  until  after 
the  Newmans  had  completed   their  inventory  and  ap- 


36i 

praisement.  I  immediately  called  upon  Mr.  Harrison 
and  stated  to  him  that  Mrs.  Levinson  and  her  daugh- 
ters were  greatly  dissatisfied  with  the  small  value  set 
upon  the  interest  of  the  estate  in  the  partnership,  and 
also  stated  to  him  that  Mrs.  Levinson  and  her  daugh- 
ters felt  that  they  had  the  right  to  expect  that  he,  the 
attorney  for  the  executor,  would  act  for  them,  that  Mrs. 
Levinson  and  her  daughters  ''looked  upon  it  that  it  was 
his  duty  to  take  the  side  of  the  legatees  and  supposed 
he  would  do  so."  ''Mr.  Harrison  was  rather  silent 
during  the  interview,  but  did  not  say  what  view  of  the 
case  in  regard  to  the  good  will  of  the  business  he  would 
take,  but  at  my  request  he  promised  me  that  I  should 
be  notified  of  any  step  which  should  be  taken  in  regard 
to  the  interest  of  the  estate  in  the  partnership."  This 
is  from  the  testimony  of  Mr.  Philbrook  in  the  record  on 
which  the  Justices  have  made  their  decision.  Mr.  Har- 
rison's testimony,  as  a  witness  for  the  Newmans,  is 
also  in  the  record  and  expressly  corroborates  Mr.  Phil- 
brook's.  I  was,  then,  employed  to  act  in  conjunction 
with  Mr.  Harrison,  not  as  an  independent  representa- 
tive, and  Mr.  Harrison  was  immediately  so  informed. 
My  relation  to  the  case  was  never  departed  from  in  any 
respect.  The  secrecy  and  deceit  which  Mr.  Harrison 
continually  practiced  was  not  only  a  violation  of  his 
express  promise  to  me,  but  was  a  violation  of  what  he 
knew  to  be  his  relation  to  Mrs.  Levinson  and  her 
daughters.  All  this  was  before  the  Justices  while  writ- 
ing their  decision. 

The  pretense  that  Mrs.  Levinson  and  her  daughters 
were  independently  represented  by  an  attorney  of  their 
own,  so  as  in  any  degree  to  release  Ralph  C.  Harrison 
from  his  duty  to  them,  is  deliberately  and  outrageously 
false. 


362 

19-  The  Lying  Pretense  That  Ralph  C,  Harrison 
is  Charged  with  Fraud  for  JVot  Questioning 
the  Validity  of  the  Partnership  Articles- 

No  such  fact  has  ever  been  charged  against  Ralph 
C.  Harrison,  nor  was  any  such  fact  charged  against  the 
executor.  But  the  decision  dishonestly  pretends  that  a 
part  of  the  conduct  of  Mr.  Harrison  charged  as  fraudu- 
lent was  his  failure  to  assert  that  the  partnership 
articles  had  not  been  executed  by  the  deceased  partner 
— dishonestly  trying  to  shift  the  ground  so  as  better  to 
whitewash  the  Associate  Justice  Ralph  C.  Harrison. 
This  falsehood  of  the  decision  may  be  seen  on  p.  62 
of  the  Appendix. 


20,  The  Lying  Pretense  That  Mrs.  Levinson 
and  Her  Daughters  Consented  That  the  J^ew- 
mans  Should  Make  the  Inventory  and  Ap- 
praisement and  That  They  Knew  Its  Purpose. 

The  particular  piece  of  lying  here  referred  to  is  in 
the  part  of  the  decision  purporting  to  have  been  written 
by  the  Justice  Charles  H.  Garoutte,  and  may  be  seen 
on  p.  53  and  again  on  p.  58  of  the  Appendix. 

The  decision  with  rankest  dishonesty  suppresses  the 
fact  that  it  was  the  Newmans  who  prepared  the  writing 
addressed  to  them  by  Mrs.  Levinson  and  her  daughters, 
and  that  they  and  the  executor  induced  Mrs.  Levinson 
and  her  daughters  to  sign  it,  and  did  this  all  on  the 
secret  advice  of  Ralph  C.  Harrison  and  without  any 
explanation  of  its  purpose.       And  the  assertions  that 


3^3 

[rs.  Levinson  "  knew  what  was  being  done,"  "  had  full 
knowledge  of  what  was  being  done,"  are  deliberate  and 
gross  lies.  Neither  Mrs.  Levinson  nor  either  of  her 
daughters  was  given  any  explanation  of  the  paper  they 
were  induced  to  sign  and  hand  back  to  the  Newmans; 
and  none  of  them  had  the  slightest  knowledge  or  any 
ground  to  suppose  that  the  Newmans  were  fixing  a 
valuation  upon  which  they  intended  to  take  the  dead 
partner's  interest  in  the  firm. 


I 


1'  The  Lie  That  Mrs-  Levinson  and  Her 
Daughters  Had  Agreed  That  the  Partner- 
ship Articles  Were  Valid  and  Had  Assented 
to  the  JSTewman's  Inventory  and  Appraise- 
ment With  the  Sole  Exception  of  the  Omis- 
sion of  the  Good  Will  of  the  Business- 

The  lie  here  referred  to  is  set  out  in  the  part  of  the 
decision  written  by  Wm.  H.  Beatty,  the  Chief  Justice, 
as  shown  on  pages  62-63,  71  and  72  of  the  Appendix, 
That  part  of  the  final  decision  is  a  continuation  of  the 
same  falsehood  as  stated  in  the  judgment  of  disbar- 
ment, and  in  the  final  decision  it  is  supported  by  the 
same  trickery  (described  on  pages  242-244  above)  as  in 
the  judgment  of  disbarment.  As  there  pointed  out, 
this  particular  falsehood  was  taken  from  the  editorial 
published  on  Dec.  20,  1894,  in  The  Record-Union, 

In  addition  to  what  is  pointed  out  on  pages  242-244 
above,  let  it  be  borne  in  mind  that  the  authors  of  the 
decision  have  carefully  suppressed  the  fact  (shown  on 
pages  21-47  above)  of  the  long  effort  of  Mrs.  Levinson 


3^4 

and  her  daughters  to  avoid  litigation  by  a  compromise. 
The  Newmans  were  starving  them;  and,  as  was  after- 
wards discovered,  were  starving  them  on  the  secret 
advice  of  Ralph  C.  Harrison.  The  raising  of  any  con- 
tention as  to  the  fraud  of  the  Newmans  would  not  only 
have  destroyed  all  hope  of  compromise,  but  would  have 
left  the  family  without  hope  of  obtaining  a  present 
means  of  living,  the  very  thing  they  were  striving  for. 
The  universal  rule  that  no  one  makes  an  admission  by 
what  he  may  say  or  omit  to  say  in  treating  for  a  com- 
promise is  therefore  especially  applicable  to  Mrs.  Lev- 
inson  and  her  daughters.  Besides,  neither  Mrs.  Lev- 
inson,  nor  neither  of  her  daughters,  nor  their  attorney, 
was  ever  shown  any  part  of  the  Newmans'  inventory 
and  appraisement. 


The  Lie  Thai  Mr.  Levinson' s  Esiate  Had  no 
Right  to  Share  in  the  Good  Will  of  the 
Business. 


The  particular  falsehood  of  the  decision  here  referred 
to  may  be  seen  on  p.  73  of  the  Appendix. 

That  the  business  of  a  large  retail  house,  long  estab 
lished  and  widely  and  favorably  known,  has  a  grea 
earning  capacity  and  therefore  a  great  value,  is  wel 
known.  The  source  of  this  earning  power  is  known  aj 
the  good  will  of  the  business.  The  law  concerning  the 
good  will  of  the  firm's  business  as  partnership  property 
and  showing  the  name  of  Newman  &  Levinson  to  be  a 
trade  name  and  included  in  the  good  will,  as  indicatec 
on  pages  103-105  above,  was  given  fully  in  the  plain- 
tiff's  brief.     All   this   is    met   by  the  authors  of  the 


3^5 

decision  by  deliberately  lying.  They  dishonestly 
pretend  that  the  name  of  Newman  &  Levinson  is 
not  a  ''  trade  name  only."  They  with  stupendous 
lying  pretend  that  it  is  "  composed  of  the  names 
of  the  partners."  Where  in  it  is  the  name  Will- 
iam J.  Newman  or  the  name  Benjamin  Newman  or 
the  name  John  Levinson  ?  The  three  Justices  de- 
liberately lie  about  the  facts  and  lie  about'  the  law, 
asserting  a  conclusion  known  by  them  to  be  a 
villainous  falsehood,  that  the  good  will  of  the  business 
of  Newman  &  Levinson  was  not  part  of  the  property  of 
the  firm. 


28.    The  Lie  That  the  Transfer  to  the  Newmans 
Was  J^ot  Secret. 

The  particular  piece  of  stupendous  lying  here  re- 
ferred to  IS  in  the  part  of  the  decision  written  by  Wm. 
H.  Beatty,  the  Chief  Justice,  and  may  be  seen  on  page 
65  of  the  Appendix. 

The  impudent  lie  that  in  the  Newmans'  answer  filed 
Nov.  20,  1890,  "  such  disclosure  was  fully  and  unre- 
servedl}^  made  in  the  most  direct  and  simple  terms," 
has'  been  pointed  out  above. 

Let  us  now  consider  the  assertion  that,  "  as  to  the 
secrecy  of  the  transaction,  the  simple  truth  is  that  Mr. 
Philbrook  and  his  clients  were  not  called  in  to  witness 
the  payment  of  the  money  or  the  delivery  of  the 
receipts." 

There  is  to  be  noticed  here  the  studied  cunning  in 
the  use  of  language,  cunning  that  pervades  the  entire 
language  of  the  decision  relating  to  the  fraud.     They 


366 

do  not  say  directly  that  the  only  secrecy  of  the  transac- 
tion was  ^'  that  Mr.  Philbrook  and  his  clients  were  not 
called  in  to  witness  the  payment  of  the  money  or  the 
delivery  of  the  receipts."  Bnt  they  say  it  by  cunning 
indirection,  by  the  phrase  "the  simple  truth  is,"  etc. 
the  trickery  of  ignoratio  elenchi  (described  on  pages 
149-154  above).  They  are  adroit  and  cunning  in  the 
use  of  language  as  a  means  of  lying.  The  meeting  of  the 
conspirators  Ralph  C.  Harrison,  M.  S.  Eisner,  William 
J.  Newman,  Benjamin  Newman  and  the  executor,  in 
Ralph  C.  Harrison's  ofiice  on  September  6,  1890,  was 
secret  in  every  respect.  The  transfer  to  the  Newmans 
there  made  was  utterly  secret.  It  was  never  authorized 
by  any  Court  or  Judge,  nor  by  any  person  interested  in 
the  deceased  partner's  estate.  It  was  never  reported  to 
any  Court  or  Judge.  The  making  of  the  papers  of 
transfer  to  the  Newmans  and  the  putting  of  the  papers 
of  transfer  in  the  handwriting  of  Ralph  C.  Harrison 
and  having  them  subscribed  by  him  and  by  him  alone 
as  the  witness,  all  was  secret.  It  was  all  kept  pro- 
foundly secret.  The  fact  of  making  any  paper  signi- 
fying any  transfer  to  the  Newmans  or  that  the  exec- 
utor had  transferred  Mr.  Levinson's  interest  in  the  firm 
to  them,  or  that  he  had  accepted  anything  from  them  in 
full  payment  or  in  full  settlement  of  Mr.  Levinson's 
interest  in  the  firm — no  such  fact  was  ever  mentioned 
until  M.  S.  Eisner  mentioned  it  in  the  Probate  Court  on 
November  13,  1891,  in  trying  to  prevent  Mrs.  Levinson 
and  her  daughters  from  obtaining  any  of  the  money  in 
the  executor's  hands.  We  thereupon  immediately  re- 
quested to  see  the  paper  made  by  the  executor  to  the 
Newmans.  We  were  put  off.  We  made  the  request  a 
second  time.     We  were  again  put  off.      Six  days  later 


367 


Tnat  he  had  given  the  Newmans  any  paper  and  refused 
information  as  to  what  he  had  done.  We  made  the 
same  request  of  him  again  a  few  days  later  with  the 
same  result.  We  then  charged  him  with  fraud  and 
collusion  with  the  Newmans,  and  on  that  ground 
demanded  his  removal.  Thereupon,  he  at  once  sent  his 
flag  of  surrender,  offering  to  resign.  It  was  then  for  the 
first  time  that  Mrs.  Levinson  and  her  daughters  were 
shown  the  papers  made  September  6,  1890,  and  even 
then  only  copies,  not  even  then  disclosing  that,  as  E.  R. 
Taylor  has  been  careful  to  remind  the  Court,  ''  It  is  in 
Judge  Harrison's  handwriting."  It  was  not  until  after 
fifteen  months  that  any  disclosure  was  obtained,  and 
even  then  only  because  forced.  And  during  all  this 
time  the  express  promise  of "  Mr.  Justice  Harrison," 
that  no  step  should  be  taken  in  regard  to  the  interest  of 
the  estate  in  the  partnership,  without  previous  notice, 
stood  as  a  continual  assurance  that  no  transfer  to 
the  Newmans  nor  any  settlement  with  them  had  been 
made. 

All  this  and  the  full  and  uncontradicted  proof  of  it 
was  before  the  Justices  while  making  their  decision. 
In  denying  the  secrecy  of  the  transfer  they  have  delib- 
erately and' outrageously  lied. 

Further  on  in  the  decision  its  authors  say  that  by 
making  the  secret  transfer  to  the  two  Newmans  *'the 
executor  placed  himself  in  the  position  of  unequivocally 
refusing  to  proceed  against  the  surviving  partners"  etc. 
(See  the  xAippendix  p.  64).  That  is  another  cunning 
and  impudent  lie  that  the  transaction  was  not  secret. 
A  man  can  not  "place  himself  in  a  position  of  unequiv- 
ocally refusing"  without  making  his  position  known  to 


368 

the  person  whom  he  refuses.  How  can  any  one  be  re- 
fused by  an  act  done  in  profound  secrecy  and  kept  pro- 
foundly secret  from  him?  The  words  "the  executor 
placed  himself  in  the  position  of  unequivocally  refusing 
to  proceed  against  the  surviving  partners"  are  a  delib- 
erate and  cunningly  expressed  lie  that  the  transfer  to 
the  Newmans  was  not  secret. 


24'  The  Lying  Suppression  of  the  Exeeutor's  Re- 
fusal in  JS^ovemher,  1891,  to  Disclose  the 
Transfer  to  the  Two  Kewmans, 

That  refusal  of  the  executor  is  stated  on  pages  47-49 
above,  and  is  all  shown  clearly  in  the  plaintiff's  brief 
on  file. 

The  authors  of  the  decision  deliberately  and  dishon- 
estly ignore  that  anything  of  the  kind  ever  happened. 


25.  The  Lie  That  Mrs.  Levinson  and  Her  Daiigh- 
•    ters  Could  J^ot  Have  Shared  in  the  Money  the 
Executor  Received,  and  So  Were  Mot  Injured 
hy  the  Secrecy. 

In  the  decision  it  is  said  (in  the  part  written  by  Wm. 
H.  Beatty,  the  Chief  Justice,  Appendix,  p.  65): 

"Their  rights  were  not  being  concluded  or  in  any  wise 
prejudiced  *  >f^  *  No  money  in  the  hands  of  the  execu- 
tor could  then  or  for  months  thereafter  be  applied  in  pay- 
ment of  claims  or  legacies:  in  short,  neither  the  executor  nor 
the  Newmans  could  gain  the  slightest  advantage,  nor  the 
legatees  suffer  the  slightest  loss,  by  concealment  of  the  fact 
that  the  settlement  had  been  made." 


3^9 

The  falsehood  of  the  statement  that  '*no  money  in 
the  hands  of  the  executor  could  then  or  for  months 
thereafter  be  applied  in  payment  of  *  *  *  lega- 
cies," is  plain.  The  executor  had  received  his  letters 
testamentary  on  March  i8,  1890.  And  a  familiar  and 
often  applied  section  of  the  Code  [Sec.  1658,  C.  C.  P.] 
provides  that  "at  any  time  after  the  lapse  of  four 
months  from  the  issuing  of  letters  testamentary  ''^  * 
*  any  legatee  may  present  his  petition  'to  the  Court 
for  the  legacy  or  share  of  the  estate  to  which  he  is  en- 
titled, to  be  given  to  him  upon  his  giving  bonds,  with 
security,  for  the  payment  of  his  proportion  of  the  debts 
of  the  estate."  And  another  section  of  the  Code  pro- 
vides that  either  the  whole  or  a  part  of  the  legacy  may 
then  be  obtained. 

Besides,  Mr.  Levinson's  will  provides  that  from  the 
time  of  his  death  his  "  beloved  mother"  should  have 
$200  per  month  for  her  support  out  of  the  income  of 
his  interest  in  the  firm.  And  between  his  death 
and  that  time  that  income  had  amounted  to  more 
than  $6,848.82,  and  she  had  not  been  allowed  to  re- 
ceive so  much  as  a  cent, — and  all  on  the  advice  of 
Ralph  C.  Harrison,  her  attorney, — advice  which  he 
secretly  gave  against  her  for  the  purpose  of  reducing 
her  to  suffering,  and  thus  compelling  her  to  surrender 
to  her  cruel  and  treacherous  enemies  the  Newmans. 


370 

26.  The  Lie  That  the  Transfer  to  the  J^ewmans 
Could  Have  Been  of  JSTo  Advantage  to  Them 
and  J\l*o  Detriment  to  the  Legatees  and  There- 
fore Could  JVot  Have  Been  Fraudulent. 

The  decision  says  that  the  sole  efifect  of  the  transfer 
so  far  as  the  executor  was  concerned,  was  "  to  expose 
the  executor  to  censure  and  punishment  and  the  New- 
mans to  certain  loss"  (see  the  Appendix  pp.  64-65). 
Such  is  the  language  of  the  very  men  who,  in  another 
part  of  the  decision,  say  that  if  the  Newmans  were  put 
to  an  accounting,  they  would  be  gainers  and  not  losers  ! 

But,  laying  aside  their  self-contradiction,  the  fact  was 
that  Mrs.  Levinson  and  her  daughters  not  only  had  no 
means  to  litigate,  but  were  in  want  of  the  very  means 
of  livelihood.  And  it  was  on  the  advice  of  Ralph  C. 
Harrison  himself  that  the  Newmans  and  the  executor 
were  doing  their  utmost  to  keep  them  from  getting  a 
cent  of  money.  All  this  was  before  the  Justices  when 
writing  their  decision.  They  themselves  assert  that 
the  Newmans  had  a  right  to  take  back  all  they  had 
paid  the  executor  unless  the  transfer  was  accepted  as 
valid.  The  three  Justices  well  knew  that  an  old  lady 
and  her  two  daughters  cannot  litigate  without  money, 
and  so  did  the  conspirators  Ralph  C.  Harrison,  the  ex- 
ecutor and  the  Newmans.  How  false,  then,  how  full 
of  bad  faith,  how  reeking  with  perfidy  is  the  pretense 
that  the  transfer  could  not  have  been  fraudulent  be- 
cause even  though  ^' unauthorized  and  void'' only  the 
parties  to  it  could  possibly  suffer  ! 


371 

27,  The  Lie  That  J^o  Profits  Were  Earned  Be- 
tween Mr.  Levinson' s  Death  and  the  Trans- 
fer to  the  JSTewmans. 

The  proof  is  full  and  uncontradicted  that  between 
Mr.  Levinson's  death  and  September  6,  1890,  the  date 
of  the  transfer  by  the  executor  to  the  Newmans,  the 
profits  of  the  firm  were  something  more  than  $22,829.40. 
Now,  as  already  shown,  the  three  Justices,  Beatty,  Hen- 
shaw  and  Temple  avow  that  the  articles  of  partnership 
gave  the  Newmans  no  right  take  Mr.  Levinson's  inter- 
est in  the  firm,  and  that  the  transaction  of  September 
6,  1890,  was  a  ''  transfer  to  the  Newmans  "  by  the  ex- 
ecutor. They  hold,  therefore,  that  the  executor  was  on 
September  6,  1890,  without  authority,  transferring  to 
the  Newmans  Mr.  Levinson's  interest  in  the  firm.  The 
three  Justices  assert  that  the  price  was  "fair,"  "indeed, 
a  very  liberal  amount."  But  as  they  avow  that  the 
Newmans  were  taking  the  interest,  not  by  virtue  of  any 
right  given  by  the  partnership  articles,  but  under  an 
independent  transfer  of  September  6,  1890,  the  price 
could  not  be  fair  unless  it  was  the  value  of  Mr.  Levin- 
son's  interest  at  that  time.  That  being  so,  the  price 
could  not  be  fair  without  including  thirty  per  cent,  of 
the  $22,829.40  profits  earned  by  the  firm  between  Mr. 
Levinson's  death  and  that  time.  This  is  all  pointed 
out  in  the  plaintiff's  brief  too  plainly  and  emphatically 
to  be  overlooked  honestly. 

The  authors  of  the  decision  get  over  all  this  by  dis- 
honestly omitting  to  say  anything  about  it — an  out- 
rageous lie  in  the  style  of  Ananias  and  Sapphira, 


372 

2S.  The  Lie  That  the  Goods  Were  of  JYo  More 
Value  on  Septeniber  6,  1890,  Than  in  March, 
1890. 

This  is  an  outrageous  lie  of  suppression  similar  to 
the  last.  The  three  Justices  expressly  make  the  trans- 
fer to  the  Newmans  rest  without  any  support  in  the 
articles  of  partnership.  That  being  so,  the  price  could 
not  be  fair  without  being  the  fair  value  at  the  time  of 
the  transfer,  z.  e.^  on  September  6,  1890.  Now,  Will- 
iam J.  Newman  himself  testifies  that  between  March, 
1890,  and  September  6,  1890,  the  McKinley  tariff  bill, 
and  even  the  anticipated  passage  of  that  bill,  affected 
every  dollar's  worth  of  the  goods  on  hand,  that  ''  it 
raised  the  profit  on  some  to  200  per  cent,  and  on  some 
it  raised  the  profit  to  100  per  cent.,  and  all  the  way 
from  25  per  cent,  up."  He  also  testifies  that  the  stock 
of  goods  was  greatly  increased  between  March,  1890, 
and  September  6,  1890,  and  that  the  new  goods  were 
bought  cheaply  in  proportion  to  their  real  value,  and 
on  the  credit  of  the  firm.  Now,  the  Newmans  were 
trustees  of  Mr.  Levinson's  interest  in  the  firm.  If  they 
concealed  the  facts,  it  was  fraud.  If  they  divulged  the 
facts  to  the  executor  and  to  the  man  who  is  called  in  the 
decision  "Mr.  Justice  Harrison,"  then  all  the  worse  was 
the  conduct  of  the  executor  and  of  "Mr.  Justice  Har- 
rison." All  this  enormous  increase  in  the  value  of  the 
goods,  an  increase  which,  if  only  100  per  cent.,  would 
have  added  no  less  than  $62,626.25  to  the  value  of  Mr. 
Levin  son's  interest — all  this  and  all  the  newly  pur- 
chased goods  were  avowedly  omitted  from  the  valuation. 
All  this  is  pointed  out  in  the  plaintiff's  brief  too  plainly 
and  emphatically  to  be  honestly  overlooked. 


373 

29'   The  Lie  That  the  Executor's  Removal  Was 
JVot  Demanded  on  the  Ground  of  Fraud. 

The  particular  falsehoods  of  the  decision  here  re- 
ferred to  may  be  seen  on  pages  53-54  and  page  64  of 
the  Appendix.  The  authors  of  the  decision  there  in- 
dulge in  deliberate  lyings  concerning  the  ground  on 
which  the  executor's  removal  was  demanded,  a  demand 
by  reason  of  which  he  was  compelled  to  resign.  The 
ground  on  which,  on  November  24,  1891,  Mrs.  Levin- 
son  and  her  daughters  demanded  the  executor's  re- 
moval, was  not  ''the  omission  to  value  the  good  will  as 
part  of  the  estate,"  nor  "that  he  was  neglecting  the 
duties  of  his  trust."  The  ground  on  which  his  removal 
was  demanded,  as  expressed  in  the  petition,  was  that 
he  had  been  and  was  the  mere  fraudulent  confederate 
and  tool  of  the  two  Newmans,  and  that  at  sometime 
unknown  he  had  secretly  and  fraudulently  and  as  their 
confederate  executed  to  them  some  instrument  in  writ- 
ing purporting  to  transfer  to  them  Mr.  Levinson's  in- 
terest in  the  firm.  This  is  all  in  the  record  and  pointed 
out  in  the  plaintiff's  brief  too  plainly  and  emphatically 
for  the  possibility  of  any  honest  mistake. 

And  as  stated  on  page  49  above,  when  the  executor's 
removal  was  demanded,  the  Probate  Judge,  on  issuing 
the  citation  against  him,  required  him  to  give  a  bond, 
and  the  two  Newmans  furmsked  the  bond^  a  fact  of  which 
the  decision  is  dishonestly  silent. 


.     374 

30.  The  Lie  That  the  Fraud  Charged  so  Far  as 
Implicating  Ralph  C-  Harrison,  Was  Only 
** Advice''  to  the  Executor. 

The  particular  piece  of  lying  here  referred  to  is  in 
the  part  of  the  decision  written  by  Wm.  H.  Beatty,  the 
Chief  Justice,  and  may  be  seen  on  pages  63,  64  and  67 
of  the  Appendix.  As  there  set  out,  it  is  a  continuation 
of  the  judgment  of  disbarment,  and  was  taken  from  the 
editorial  published  on  December  20,  1894.  (See  pages 
244-5  above).  The  strenuous  and  unvarying  effort  of 
the  decision  is  to  cut  down  the  charge  of  fraud,  so  far 
as  involving  ''Mr.  Justice  Harrison,"  to  mere  "advice" 
to  the  executor  in  respect  to  the  construction  of  the 
partnership  articles.  All  this  is  deliberate  and  inten- 
tional falsehood.  Mr.  Harrison's  advice  to  the  New- 
mans to  starve  their  dead  partner's  family — his  putting 
the  Newmans  up  to  getting  the  writing  from  Mrs.  Lev- 
inson  and  her  daughters  on  March  5,  1890 — his  con- 
duct in  the  Probate  Court  proceeding  in  July,  1890 — in 
the  Probate  Court  in  December,  1890 — his  part  in  the 
secret  transfer  to  the  Newmans  on  September  6,  1890 
— his  lying  deceit  in  breaking  his  promise  to  have 
nothing  done  without  notice — all  this  is  something 
more  than  advice  to  the  executor. 


31.  The  Lie  That  Mr-  Jarloe  Acted  With  ''Mr. 
Justice  Harrison''  in  the  Conduct  Charged  as 
Fraudulent, 

The  particular  piece  of  lying  here  referred  to  is  prac- 
ticed in  the  part  of  the  decision  written  by  Wm.  H. 
Beatty,  the  Chief  Justice,   where  it  may  be  seen  on 


375 

pages  62-63  of  the  Appendix.  Its  purpose  is  to  white- 
wash "Mr.  Justice  Harrison"  by  falsely  representing 
that  what  he  did  was  done  by  Mr.  Jarboe  with  him. 
That  pretense  was  a  deliberate  lie.  Mr.  Jarboe  took  no 
part  in  the  matter,  and  did  not  begin  to  act  as  the  at- 
torney for  the  executor  until  in  1891,  after  Mr.  Harri- 
son had  taken  office  as  Justice  of  the  Supreme  Court. 
Mr.  Jarboe  then  found  himself  in  a  position  previously 
created  for  him  by  the  Newmans,  Mr.  Harrison  and  the 
executor.  He  manifested  his  repugnance  to  it  by  de- 
claring, '^I  am  not  going  to  do  anything  about  the  mat- 
ter that  looks  unprofessional,  and  I  have  just  told  Ben 
Newman  that  he  must  stop  coming  here.  I  have  told 
him  to  go  and  employ  Dr.  Taylor  as  his  attorney,  and 
Dr.  Taylor  is  now  the  attorney  for  the  Newmans."  He 
also  showed  his  repugnance  to  the  position  into  which 
he  had  been  put  by  the  fact  that  he  did  not  appear  in 
the  Probate  Court  to  resist  the  petition  of  Mrs.  Levin - 
son  and  her  daughters  for  part  of  the  money  in  the  ex- 
ecutor's hands,  but  left  that  to  be  done  by  Mr.  Eisner 
and  E.  R.  Taylor,  the  Newmans'  attorneys.  By  telling 
the  executor  on  November  19,  189 1,  not  to  give  infor- 
mation to  Mrs.  Levinson  and  her  daughters,  Mr.  Jarboe 
still  showed  his  consciousness  that  the  case  that  had 
been  cast  upon  him  would  not  bear  the  light.  Mr.  Jar- 
boe testifies  to  this  as  a  witness,  for  he  says:  "I  thought 
it  was  not  prudent  for  him  to  give  information  until  he 
had  advised  with  me  about  doing  so."  But  the  con- 
duct of  Ralph  C.  Harrison  had  been  the  conduct  of 
Ralph  C.  Harrison  alone  and  not  of  "Jarboe  &  Harri- 
son." So  far  as  appears,  Mr.  Jarboe  had  had  no  more 
to  do  with  it  than  Mr.  Goodfellow,  who  acted  for  the 
executor  at  the  time  of  his  resignation.     The  only  ex- 


376 

cuse  of  the  Justices  for  dragging  Mr.  Jarboe  in  to  bol- 
ster up  "Mr.  Justice  Harrison''  is  that  Mr.  Jarboe  was  a 
member  of  the  same  law  firm.  But  Mr.  Harrison's 
own  testimony  is  in  the  record,  as  a  witness  for  the  two 
Newmans,  and  is  as  follows:  "Our  firm  was  then  Jar- 
boe, Harrison  &  Goodfellow,  but  the  matter  of  that  es- 
tate was  under  my  own  personal  care  until  I  became  a 
Justice  of  the  Supreme  Court."  Why,  then,  do  not  the 
Justices  drag  in  Mr.  Goodfellow,  as  well  as  Mr.  Jarboe, 
to  bolster  up  the  unspeakable  treachery  and  fraud  of 
"Mr.  Justice  Harrison"  ?  The  answer  is  plain:  When 
the  decision  was  made,  Mr.  Jarboe  was  dead  and  could 
not  protest  I 


32.  The  Impudent  Lie  That  Mr,  Harrison  Sought 
the  Direction  of  the  Probate  Court  As  to  the 
Right  of  Mr.  Levinson's  Estate  to  Share  in  the 
Good  Will  of  the  Business  of  the  Firm- 

The  particular  falsehood  of  the  decision  here  referred 
to  may  be  seen  on  page  63  of  the  Appendix.  It  is  a 
deliberate  and  impudent  lie  about  the  proceeding  in  the 
Probate  Court  in  July,  1890  (stated  on  pages  29-31 
above).  With  their  characteristic  trickery  in  the  use 
of  language,  the  authors  of  the  decision  say  that  Ralph 
C.  Harrison  was  in  that  proceeding  trying  to  obtain  a 
decision  by  the  Probate  Court  of  the  question  whether 
Mr.  Le Vinson's  estate  was  entitled  to  an  allowance  for 
the  good  will  of  the  business.  This  assertion  of  the 
Justices  is  a  deliberate  and  most  impudent  lie.  The 
petition  there  filed  by  the  New^mans  is  in  the  record  of 
the  case  upon  which  the  Justices  base   their  decision. 


377 

That  petition  stated  that  "  an  inventory  of  the  assets 
and  liabilities  of  said  copartnership  was  taken  and  an 
appraisement  thereof  made,  from  which  inventory  and 
appraisement,  by  its  terms,  the  value  of  the  interest  of 
said  decedent's  estate  in  said  copartnership  and  the  total 
amount  due  to  the  estate  of  said  decedent  on  account  of 
his  interest  in  said  copartnership  was  ascertained  and 
determined  to  be  the  sum  of  $20,790  80."  That  petition 
said  not  a  word  about  the  omission  to  make  allowance 
for  the  good  will  of  the  business.  On  the  contrary,  it 
declared  that  all  the  assets  had  been  allowed  for.  Ralph 
C.  Harrison  appeared  there  and  filed  an  answer  for  the 
executor,  saying,  '^  Now  comes  S.  W.  Raveley,  the 
executor  of  the  last  will  and  testament  of  John  Levin- 
son,  deceased,  and  admits  that  the  facts  set  forth  in  the 
application  of  William  J.  Newman  and  Benjamin  New- 
man for  an  order  allowing  them  to  purchase  the  inter- 
est of  the  decedent  in  the  firm  of  Newman  &  Levinson 
are  correctly  stated  in  said  petition  and  submits  to  the 
judgment  of  the  Court  as  to  the  order  proper  to  be 
made  in  the  premises."  In  that  proceeding  the  New- 
mans and  Ralph  C.  Harrison,  on  behalf  of  the  executor, 
joined  in  concealing  the  omission  to  make  allowance  for 
the  good  will.  All  this  was  before  the  Justices  while 
making  their  decision.  In  asserting  that  it  was  the 
purpose,  or  any  part  of  the  purpose  of  ^'  Mr.  Justice 
Harrison''  to  obtain  there  a  ruling  of  the  Probate  Court 
in  respect  to  the  right  of  Mr.  Levinson's  estate  to  share 
in  the  good  will,  the  Justices  have  outrageously  lied. 


378 

SS.  The  Lying  Suppression  of  the  Proof  of  Ralph 
C.  Harrison's  Confederacy  With  the  JSlew- 
mans. 

It  will  be  seen  from  the  facts  stated  under  the  next 
preceding  head,  that  the  proceeding  there  referred  to 
was  a  fraudulent  and  collusive  attempt  by  Mr.  Har- 
rison, Mr.  Eisner,  the  Newmans  and  the  executor  to 
obtain,  on  false  and  lying  grounds,  an  order  of  the 
Probate  Court  as  an  excuse  for  turning  over  Mr.  Lev- 
inson's  interest  in  the  firm  to  the  Newmans  for  only 
$20,790.88.  A  special  incentive  to  that  attempt  was 
the  fact  of  the  passage  of  the  McKinley  tariff  bill  in 
the  House  of  Representatives  on  May  21,  and  the 
assurance  that  it  was  about  to  become  a  law.  This 
fact  had  enormously  increased  the  value  of  the  goods 
on  hand,  and  also  the  value  of  the  good  will  of  the  busi- 
ness. As  already  mentioned,  William  J.  Newman  tes- 
tifies that  '^  it  raised  the  profit  on  some  to  200  per  cent., 
and  on  some  it  raised  the  profit  to  100  per  cent.,  and  all 
the  way  from  25  per  cent,  up."  He  also  says  :  "For 
instance,  a  dozen  pearl  buttons  that  we  formerly  sold 
for  five  cents  have  risen  to  fifteen  cents,  and  they  did 
not  cost  us  any  more  than  they  did  before,  but  the 
retail  price  has  raised  on  them.  A  pair  of  corsets  that 
we  sold  for  $3  and  had  them  on  hand  has  raised  to 
$3.50.  Every  yard  of  lace  that  we  sold  for  forty  cents 
has  been  marked  up  to  fifty  cents,  consequently  that 
made  quite  a  difference  in  the  profits.  And  any  man 
who  did  not  make  profits  that  year  was  no  business 
man."  In  the  proceeding  in  the  Probate  Court  Ralph 
C.  Harrison  was  no  mere  adviser  of  the  executor,  but 
a  chief  actor.     It  was  he  who  drew  up,  signed  and  filed 


379 

the  answer  of  the  executor  admitting  the  lying  petition 
of  the  Newmans  to  be  true,  concealing  even  the  omis- 
sion to  allow  for  the  good  will.  The  executor  himself, 
though  present,  did  not  sign  the  answer.  That  pro- 
ceeding in  the  Probate  Court  was  clearly  and  undenia- 
bly an  act  of  conspiracy  against  Mr.  Levinson's  estate, 
and  in  favor  of  the  two  Newmans.  It  was  a  scheme  in 
which  Ralph  C.  Harrison,  M.  S.  Eisner,  the  two  New- 
mans and  the  executor  were  fraudulent  confederates.  It 
was  thwarted  only  by  the  fact  that  I  got  wind  of  what 
was  going  on  and  showed  the  Probate  Court  that  it  had 
no  jurisdiction  to  make  the  order  which  Mr.  Harrison 
and  the  Newmans  were  seeking. 

The  Justices  get  over  this  proof  of  the  confederacy 
of  Ralph  C.  Harrison  with  the  Newmans  by  dishon- 
estly suppressing  the  facts — and  with  the  impudent 
lie  that  Mr.  Harrison  was  trying  to  get  a  ruling  on  the 
question  of  the  good  will.  But  this  is  far  from  all  the 
facts  relating  to  the  proof  of  Ralph  C.  Harrison's  fraud, 
that  are,  in  the  final  decision,  carefully  suppressed  and 
kept  out  of  sight.  There  is,  in  the  final  decision,  the 
same  suppression  of  the  facts  as  in  the  judgment  of 
disbarment,  pointed  out  on  pages  241-2  above. 


SJf,  The  Lying  Pretense  That  Mr,  Harrison  Was 
'^Obliged  to  Take  the  Responsihility  of  Decid- 
ing'^ That  the  Executor  Should  Make  the 
Transfer  to  the  JSfewmans, 

The  particular  falsehood  of  the  decision  here  referred 
to  may  be  seen  on  pages  63-64  of  the  Appendix. 

The  pretense  of  Mr.   Harrison's    '*  being  obliged  to 


38o 

take  the  responsibility  of  deciding"  whether  the  exec- 
ntor  should  transfer  the  interest  of  Mr.  Levinson  in  the 
firm  to  the  Newmans  for  only  $20,790.88,  is  an  out- 
rageous falsehood.  The  bad  faith  with  which  it  is 
asserted  in  the  decision  is  manifest.  The  Justices  base 
the  assertion  upon  the  pretense  that  Mr.  Harrison  had 
tried  to  get  a  ruling  from  the  Probate  Court,  which  has 
been  shown  to  be  an  impudent  double  lie,  and  upon  the 
pretense  that  it  was  his  duty  "  especially  to  see  that  he 
[the  executor]  wasted  no  part  of  the  estate  in  fruitless 
litigation."  But  the  only  part  of  the  estate  that  could 
be  so  wasted  was  that  of  Mrs.  Levinson  and  her  daugh- 
ters. And  in  other  parts  of  the  decision,  the  Justices, 
in  support  of  their  lying  pretense  that  no  advantage 
was  taken  of  Mrs.  Levinson  and  her  daughters,  say  : 
^'  Levinson's  residuary  legatees  were  his  mother  and 
sisters,  all  of  full  age" — "  the  mother  and  sisters  of 
Levinson — all  adults — and  Mr.  Philbrook,  their  attor- 
ney"— "  the  heirs,  who  were  all  of  age,  and  who  were 
represented  throughout  all  court  proceedings  by  their 
attorney."  How  rascally,  then,  to  pretend  that  Mr. 
Harrison  was  ^'obliged  to  take  the  responsibility  of 
deciding"  upon  a  secret  transfer  of  Mr.  Levinson's  in- 
terest to  the  Newmans  for  only  $20,790.88  out  of  a  duty 
"  especially  to  see  that  he  wasted  no  part  of  the  estate 
in  fruitless  litigation."  As  Mrs.  Levinson  and  her 
daughters  were  "  all  of  age"  and,  besides,  had  employed 
a  special  attorney,  and  as  it  was  their  property  that 
was  being  sold,  and  as  the  sale  was  being  made  against 
their  wishes,  why  were  neither  they  nor  their  attorney 
consulted  ? 

The  authors  of  the  decision  also  dishonestly  suppress 
the  fact  that  the  attorney  employed  by  Mrs.  Levinson 


38i 

and  her  daughters  to  act  with  Mr.  Harrison  had  told 
him  and  the  executor  and  Mr.  Eisner  on  July  26,  1890, 
that  he  would  soon  file  a  petition  in  the  Probate  Court, 
on  behalf  of  the  legatees,  asking  that  the  executor's 
inventory  and  appraisement  be  amended  so  as  to  include 
the  good  will,  a  petition  that  would  lead  to  a  ruling  on 
the  good  will.  If  Mr.  Harrison  had  been  acting  hon 
estly,  why  did  he  secretly  forestall  that  petition  that 
was  soon  to  be  filed  ?  The  pretense  that  he  was  ^'obliged 
to  take  the  responsibility"  to  advise  the  secret  transfer 
is  a  most  villainous  lie. 


85.  The  Lying  Suppression  of  Ralph  C.  Harri- 
son's Making  in  the  Prohate  Court  an  Argu- 
ment for  the  Two  Jfewmans. 

The  record  contains  the  proof,  and  the  plaintiff's 
brief  points  it  out  as  one  of  the  facts  showing  that 
Ralph  C.  Harrison  and  the  executor  were  confederates 
of  the  Newmans,  that  in  December,  1890,  after  Ralph 
C.  Harrison  had  been  elected  a  Justice  of  the  Supreme 
Court,  he  appeared  in  the  Probate  Court  and  made  a 
strenuous  argument  for  the  two  Newmans  on  the  ques- 
tion of  the  good  will,  and  that  he  also  filed  a  brief  for 
them,  and  that  Mr.  Eisner  expressly  submitted  the  case 
for  the  two  Newmans  upon  the  argument  ''  Mr.  Justice 
Harrison"  then  made.  This  is  the  fact  stated  on  pages 
39-40  above.  On  that  occasion  Mr.  Harrison,  with  the 
money  of  Mrs.  Levinson  and  her  daughters  in  his 
pocket,  was  putting  forth  all  his  ability  and  ingenuity 
and  his  influence  as  Justice-elect  of  the  Supreme  Court 
in  favor  of  their  adversaries  the  two  Newmans.     And  as 


382 

the  Newmans  and  the  executor,  on  Mr.  Harrison's 
advice,  were  successfully  holding  Mrs.  Levinson  and 
her  daughters  in  penury,  a  ruling  of  the  Probate  Court 
against  them  would  have  been  likely  to  crush  them 
completely.  But  so  groundless  was  his  contention  that 
the  Probate  Judge  ruled  against  him  and  the  Newmans 
and  in  favor  of  Mr.  Levinson's  estate.  The  Justices  in 
their  decision  get  over  this  proof  of  the  confederacy  of 
Ralph  C.  Harrison  and  the  executor  with  the  Newmans 
by  dishonestly,  lyingly  ignoring  it. 


36.  The  Dishonest  Suppression  of  Ralph  C-  Har- 
rison's Advising  the  Kewmans  Kot  to  Let 
Mrs-  Levinson  Have  Money- 

Immediately  after  Mr.  Levinson's  death,  William  J. 
Newman  offered  to  loan  Mrs.  Levinson  from  time  to 
time  money  for  living  expenses  until  the  estate  should 
be  settled.  In  July,  1890,  he  received  from  Ralph  C. 
Harrison  the  advice  not  to  let  her  have  another  cent  of 
money  until  she  stopped  threatening  to  fight  him  and 
his  brother.  This  is  proved  without  contradiction  by 
the  testimony  of  Mrs.  Levinson  and  of  William  J. 
Newman  in  the  record.  The  Newmans  followed  that 
advice  and  succeeded,  with  the  executor's  help,  in  keep- 
ing their  dead  partner's  family  from  receiving  any 
money  from  his  estate  until  November,  1891,  upwards 
of  one  year  and  eight  months,  when  the  $9,000  was 
obtained  by  order  of  the  Probate  Court,  as  the  Justices 
say,  ^'over  the  protests  of  the  executor  and  of  the  New- 
mans." 


383 

The  Justices  get  over  this  evidence  of  the  confeder- 
acy of  "Mr.  Justice  Harrison"  and  the  executor  with 
the  Newmans  by  simply  ignoring  that  anything  of  the 
kind  ever  happened. 


87.  The  Dishonest  Suppression  of  the  Fact  That 
the  Tluo  J^ewmans  Had  in  Their  Pockets  oMore 
Than  $22,288.64  as  Pro fiits  Belonging  to  the 
Deceased  Partner's  Estate  at  the  Very  Time 
They  and  the  Executor  Tried  to  Prevent  a 
Part  Distribution  to  Mrs.  Levinson  and  Her 
Daughters. 

The  total  sum  paid  by  the  two  Newmans  to  the 
executor,  including  a  small  sum  as  interest,  was 
$20,964.08.  It  was  on  November  13,  1891,  that  the 
deceased  partner's  family  obtained  $9,000  of  that  sum 
by  a  decree  of  part  distribution.  That  decree  was  ob- 
tained only  after  a  contest  made  in  the  name  of  the 
executor  by  E.  R.  Taylor  and  M.  S.  Eisner,  attorneys 
for  the  Newmans.  This  is  stated  on  pp.  45-47  above. 
Now,  between  Mr.  Levinson's  death  and  that  time  the 
two  Newmans  had  actually  netted  and  pocketed,  out  of 
the  income  of  his  interest  in  the  firm,  more  than 
$22,288.64, — had  received,  from  only  the  earnings  of 
his  interest  in  the  firm,  much  more  than  all  they  had 
paid  to  the  executor  as  the  price  of  the  interest  itself. 
This  is  shown  without  dispute  by  the  proof  in  the  rec- 
ord, and  is  clearly  and  emphatically  pointed  out  in  the 
appellant's  brief. 

.The  authors  of  the  decision  for  the  two  Newmans 
have  dishonestly  ignored  that  any  such  fact  existed. 


384 


S8,  The  Dishonest  Pretense  That  the  Mewnians' 
Attorneys  Acted  Properly  in  Appearing  as 
Attorneys  for  the  Executor  and*  Striving  to 
Induce  the  Probate  Court  to  Withhold  Money 
from  the  Deceased  Partner's  Family, 

The  conduct  here  referred  to  is  mentioned  on  pp. 
45-47  above.  M.  S.  Eisner  and  E.  R.  Taylor,  attorneys 
for  the  Newmans,  there  acted  in  the  role  of  attorneys 
for  the  executor,  i.  e.^  as  attorneys  for  the  deceased 
partner's  estate,  and  as  such  put  forth  their  efforts  to 
induce  the  Judge  of  the  Probate  Court  to  withhold  from 
the  aged  widow  and  her  daughters,  the  deceased  part- 
ner's family,  the  money  of  which  for  more  than  nine- 
teen months  they  had  been  kept  in  need  and  to  which 
they  were  entitled  beyond  any  possibility  of  honest 
question.  It  may,  I  think,  be  fairly  mentioned  here, 
though  this  is  not  stated  in  the  record  in  the  Supreme 
Court,  that  this  E.  R.  Taylor  is  well  known  as  a  crony 
of  Ralph  C.  Harrison.  These  attorneys,  E.  R.  Taylor 
and  M.  S.  Eisner  were,  without  shadow  of  right,  and  in 
the  role  of  attorneys  for  a  party  for  w^hom  they  had  no 
right  to  appear — in  a  proceeding  in  which  the  Newmans 
were  not  parties  and  where  they  had  no  right  to  be 
heard — were  trying  to  induce  the  Probate  Judge  to 
make  a  false  ruling  and  solely  for  the  purpose  of  en- 
forcing against  the  deceased  partner's  family  the  siege 
of  starvation  prescribed  by  the  treacherous  scoundrel 
"Mr.  Justice  Harrison."  M.  S.  Eisner  and  E.  R. 
Taylor  were  there  engaged  in  the  basest  misconduct  of 
which  an  attorney  could  be  guilty.  The  vile  business 
in  which  they  were  so  vilely  exerting  themselves  was 


385 

but   evidence   of  the   unscrupulous  confederacy  of  the 
two  Newmans  and  the  executor. 

But  the  authors  of  the  final  decision  not  only  have 
upheld  as  proper  the  misconduct  referred  to  here,  not 
only  have  dishonestly  suppressed  all  mention  of  it  as 
evidence  that  the  two  Newmans  and  the  executor  were 
in  collusion,  but  have  actually  made  the  fact  that  the 
a^ed  widow  and  her  daughters  there  succeeded  in 
breaking  the  prescription  of  penury  put  upon  them  by 
their  attorney  ''  Mr.  Justice  Harrison,"  such  an  offense 
as  to  forfeit  all  their  rights. 


39.  The  Dishonest  Suppression  of  Testimony  that 
Ralph  C.  Harrison  Was  the  JVewmans'  Attorney. 

There  is  in  the  record  the  clear  and  uncontradicted 
testimony  of  Wm.  J.  Newman  himself  that  for  some 
months  after  Mr.  Levinson's  death  Ralph  C.  Harrison 
was  his  attorney.  Mrs.  Levinson  testifies  wdthout  con- 
tradiction that  in  July,  1890,  Wm.  J.  Newman  spoke 
to  her  of  Ralph  C.  Harrison-as  *'his  lawyer."  This  is 
set  forth  in  the  plaintiff 's  brief. 

The  authors  of  the  decision  deliberately  ignore  and 
suppress  all  this. 

40.  The  Lying  Misrepresentation  of  the  Inven- 
tory and  Appraisement  Filed  by  the  Executor. 

This  paper  is  in  the  record.  It  was  not  a  legal  pro- 
bate appraisement,  because  only  two  of  the  appointed 
appraisers  qualified  and  only  those  two  signed  the  ap- 
praisement.    The  sum   set  down  as   the  value  of  Mr. 


386 

Levinson's  interest  was  only  $20,790.88,  the  sum  which 
the  Newmans  had  named  but  which  was  nowhere  to 
be  found  in  their  inventory  and  appraisement,  or  any- 
where else.  The  plaintiff's  brief  mentions  all  this  as 
showing  that  there  was  no  legal  probate  appraisement 
and  that  the  executor  was  only  the  tool  of  the  New- 
mans because  such  appraisement  as  he  did  file  was 
only  the  sum  named  by  the  Newmans — that  the  two 
appraisers  who  signed  could  not  have  looked  even  at 
the  Newmans'  "balance  sheet." 

The   decision    ignores  all   this  and   with   deliberate 
falsehood  says  (Appendix,  p.  53): 

**In  the  inventory  and  appraisement  returned  by  the  exec- 
utor the  value  of  the  interest  of  lyevinson  in  the  partnership 
assets  was  stated  as  the  same  sum  as  that  fixed  by  the  ap- 
praisement of  the  defendants,  to  wit,  $20,790.88,  and  was 
adopted  on  the  strength  of  that  appraisemeut." 


41.  The  Lyin^  Pretense  That  All  the  Parties 
Understood  That  Mr.  Levinson's  Interest  in 
the  Firm  Had  Passed  to  the  JVewmans, 

The  particular  piece  of  lying  here  referred  to  is  prac- 
ticed in  the  part  of  the  decision  written  by  Wm.  H. 
Beatty,  the  Chief  Justice,  and  may  be  seen  on  pages 
62-3,  71  and  72  of  the  Appendix. 

It  is  there  asserted,  with  the  trickeries  of  ignoraiio 
elenchi  and  covert  assumption  (described  on  pages  148- 
154  above),  that  all  parties  understood  that  Mr.  Levin- 
son's  interest  had  passed  to  the  Newmans  without  any 
act  of  the  executor,  the  evident  purpose  being  to  shield 
"Mr.  Justice  Harrison."  This  pretense  is  a  deliberate 
and  most  outrageous  lie. 


387 

That  the  Newmans  and  M.  S.  Eisner  understood  the 
very  contrary  is  shown  by  the  petition  of  the  Newmans 
filed  in  the  Probate  Court  in  July,  1890.  That  petition 
was  signed  by  both  the  Newmans  and  by  Reinstein  & 
Eisner  as  their  attorneys,  and  said: 

'^Therefore  your  petitioners  pray  that  this  hon- 
orable Court  *  *  make  its  order  directing  the  said 
executor  to  make  a  transfer  and  conveyance  in 
valid  legal  form  to  them  of  the  entire  interest  of 
said  decedent's  estate  in  said  copartnership  at  the 
time  of  said  decedent's  death  or  subsequently  ac- 
quired." 

What  Ralph  C.  Harrison  and  the  executor  under- 
stood is  shown  by  their  answer  to  that  petition,  in 
which  they  speak  of  it  as: 

*  *  "the  application  of  William  J.  Newman 
and  Benjamin  Newman  for  an  order  allowing  them 
to  purchase  the  interest  of  decedent  in  the  firm  of 
Newman  &  Levinson." 

There  is  not  a  particle  of  evidence  that  Mrs.  Levinson 
and  her  daughters  or  any  of  them  understood  or  even 
suspected  that  the  whole  or  any  part  of  the  interest  of 
Mr.  Levinson  in  the  firm  had  passed  to  the  Newmans. 
The  proof  of  the  very  opposite  is  full  and  complete  and 
without  contradiction.  And  the  decision  was  written 
with  a  full  knowledge  of  this  fact. 

The  same  lying  pretense  is  made  in  the  language  of 
the  decision  (Appendix  pp.  62-3)  that  ''Jarboe  and  Har- 
rison [a  lying  alias  for  Ralph  C.  Harrison]  *  *  * 
always  maintained  openly  and  unequivocally  that,  ac- 
cording to  the  proper  construction  of  the  agreement, 
the  surviving  partners  took  the  whole  interest  of  the 
deceased  partner.''  That  assertion  is  a  deliberate  and 
gross  and  outrageous  falsehood  from  end  to  end. 


588 

^^.  The  Lying  Suppression  of  Ralph  C-  Har- 
rison's Use  of  His  Express  Promise  as  a  Cover 
for  Deceit  In  Favor  of  the  JYewtnans. 

The  record  shows  without  contradiction,  and  the 
plaintiff's  brief  points  it  out,  that,  over  and  above  the 
duty  of  Ralph  C.  Harrison  and  the  executor  toward 
Mrs.  Levinson  and  her  daug^hters,  Mr.  Harrison  ex- 
pressly promised  in  March,  1890,  that  Mr.  Philbrook 
"should  be  notified  of  any  step  which  should  be  taken 
in  regard  to  the  interest  of  the  estate  in  the  partner- 
ship.'' The  proof  is  full  and  without  contradiction 
that  Mr.  Harrison  never  in  any  particular  kept  that 
promise,  but  without  exception,  used  it  as  a  means  to 
throw  Mrs.  Levinson  and  her  daughters  oflF  their  guard. 

All  this  the  Justices  in  their  decision  have  studiously 
and  dishonestly  suppressed. 


43-  ''The  Opinion  of  the  Trial  Judge,  Hon,  W- 
T.  Wallace,  Which  Opinion  is  Set  Forth  in 
the  Record-''^ 

This  is  from  the  language  of  the  final  decision  for 
the  Newmans.  On  pp.  53-4  above  it  is  stated  how  the 
opinion  referred  to  came  to  be  in  the  record.  It  is 
shown  in  the  Appendix  (pp.  3-4)  so  that  the  reader 
may  examine  it.  The  sole  reason  why  I  so  exerted  my- 
self to  have  it  placed  in  the  record  was  to  show  to  the 
Supreme  Court  the  extreme  denial  of  justice  that  had 
been  dealt  out  in  favor  of  the  two  Newmans  in  the  order 
appealed  from. 

-■••See  the  Appendix  p.  54  and  also  pp.  18,  23  and  36. 


3^9 

In  the  plaintiff's  brief  this  opinion  of  the  trial  Judge 
is  printed  in  full,  and  is  shown  and  carefully  demon- 
strated to  be  outrageously  false  to  the  extent  of  an  ex- 
treme denial  of  justice. 

How   have   the  Justices    here  named   met  all  this? 

Why,  thus:  They  have  studiously  and  utterly  ignored 

the  demonstration  of  the  falsity  of  the   ruling  and  the 

denial  of  justice  so   shown    to    them.      The  fact  of  its 

being    so    shown    them,    they    have    made    one  of  the 

grounds  for  disbarring  the  attorney,  who  pointed  it  out, 

saying,  in  a  passage  which  may  be  seen  on  p.  23  of  the 

Appendix: 

*  *  "It  [the  appellant's  brief]  also  contains  language 
highly  reprehensible  concerning  the  learned  Judge  of  the 
Superior  Court  who  heard  and  determined  the  said  action  at 
nisi  prius.^^  *  * 

And,  studiously  and  utterly  ignoring  the  falsity  of 
the  opinion  and  the  denial  of  justice  there  shown,  they 
have,  in  the  final  decision  for  the  two  Newmans,  cited 
the  fact  that  it  was  made  as  a  ground  for  confirming  it. 

According  to  these  corrupt  Judges,  the  making  of  an 
outrageously  false  decision,  the  giving  of  false  judg- 
ment, is  no  offense;  it  is  their  own  practice;  according 
to  them,  the  offense  consists  in  complaining  of  the 
wrong,  in  seeking  redress. 


4-4"  The  Impwdent  and  Stupendous  Lie  as  to 
the  Facts  Proving  the  Fraud  and  Corrupt 
Practices  in  Which  Ralph  C.  Harrison  Par- 
ticipated. 

In  the  part  of  the  decision  written  by  Wm.  H.  Beatty, 
the  Chief  Justice,  it  is  said,  with  the  impudent  and  out- 
rageous lying  characteristic  of  its  author,  that  the  only 


390 

facts  charged  as  showing  the  Associate  Justice  Ralph 
C.  Harrison  guilty  of  fraud  or  of  "  an  attempt  to  cor- 
ruptly influence  the  decision  of  this  Court"  are:  i.  His 
nomination  as  candidate  for  Justice  of  the  Supreme 
Court;  2.  His  continuing  ''to  advise  executor  Raveley"; 
and  3.  His  drawing  up  and  witnessing  "the  papers 
which  passed  upon  the  settlement."  The  passage  where 
the  impudent  and  outrageous  piece  of  lying  here  re- 
ferred to  is  practiced,  may  be  seen  on  page  67  of  the 
Appendix.  To  show  it  to  be  an  impudent  and  out- 
rageous piece  of  lying,  it  is  enough  to  point  to  it.  The 
facts  are  stated  on  pages  16-59  a-bove,  and  a  summary 
is  given  on  pages  79-106  above. 


JfO-  The  Falsehood  of  the  Pretense  That  the 
Secret  Transfer  Was  JVot  a  Contrivance  to 
Influence  the  Courts  Corruptly. 

In  the  part  of  the  decision  purporting  to  have  been 
written  by  the  Justice  Charles  H.  Garoutte  it  is  de- 
clared that  ''  all  question  of  fraud  is  out  of  the  case" 
(see  the  Appendix,  p.  54).  In  that  written  by  Wm.  H. 
Beatty,  the  Chief  Justice,  it  is  declared  that  *'  it  seems 
scarcely  creditable  that  a  normal  mind  could  regard 
them  as  evidence  of  fraud  or  as  an  attempt  to  corruptly 
influence  the  decision  of  this  Court  (Id.,  p.  67). 

The  falsehood  of  the  pretense  that  the  secret  transfer 
was  not  a  contrivance  to  influence  the  courts  corruptly 
is  manifest  from  the  facts  as  they  appeared  before  any 
action  upon  the  case  by  the  Justices  of  the  Supreme 
Court.  This  has  been  pointed  out  on  pages  34-36  and 
79-97  above.     That  it  was  such  a  contrivance,  that  such 


391 

was  its  natural  and  intended  effect,  and  that  it  has  been 
actually  and  intentionally  given  efifect  as  such  has  been 
demonstrated  in  all  the  misconduct  of  the  Justices  of 
the  Supreme  Court  in  relation  to  the  case,  and  here 
shown  in  detail,  beginning  on  page  107  above. 


Jf6.    The  Refusal  to  Set  Aside  the  Decision  or  to 
Consider  the  Case, 

As  the  administrator  of  the  Levinson  estate,  and  as 
such  the  plaintiff  in  the  suit,  I  filed  in  the  Supreme 
Court,  on  Nov.  25,  1896,  a  printed  petition  asking  for  a 
reconsideration  of  the  final  decision  for  the  two  New- 
mans, which  has  also  been  shown  in  the  preceding 
pages,  and  for  a  hearing  of  the  case.  No  hearing  of 
that  petition  was  allowed,  but  on  Dec.  5,  1896,  the  Jus- 
tices unanimously  joined  in  an  order  denying  the 
petition,  but  without  giving  any  reason. 

Thereupon,  two  days  later,  the  Clerk  of  the  Supreme 
Court  issued  a  remittitur  certifying  to  the  Superior 
Court  that  the  suit  had  been  finally  decided  in  favor  of 
the  two  Newmans. 


VI. 

The   Persistent   Keeping  Up  of  the   Outrages. 

In  giving  judgment  in  Rex  vs.  Wilkes^  4  Burr.  1770, 
Lord  Mansfield  said: 

"If  I  was  wrong,  I  should  think  it  more  honor- 
able to  acknowledge  and  rectify  any  error  than  to 
justify  and  defend  it." 


392 

How  opposite  is  the  spirit  with  which  the  wrongs 
stated  in  the  preceding  pages  have  been  committed  ! 
In  the  minds  of  those  guilty  of  such  wrongs  it  has 
been  far  from  being  a  question  of  what  would  be  "more 
honorable; "  they  are  both  strangers  and  enemies  to  the 
idea  expressed  in  the  word  ''honorable."  They  have 
not  even  pretended  "to  justify  and  defend"  what  they 
have  done;  and  for  the  plain  reason  that  no  j  ustification 
or  defense  can  be  made. 

They  persist  in  their  crimes  and  keep  silent. 


I.  The  Suit  Against  the  Two  Newmans  Is 
Still  Pending  in  the  Supreme  Court  of 
California  and  a  Hearing   Denied. 

By  virtue  of  express  and  positive  provisions  of  the 
Constitution  of  the  State,  and  of  the  fact  that  the  au- 
thors of  the  final  decision  for  the  two  Newmans  divided 
into  three  against  three  upon  what  they  themselves  in 
that  decision  declared  to  be  ''of  course  the  main  ques- 
tion in  the  case"  (see  the  Appendix  p.  6i)  and  "the 
questions  upon  which  the  decisions  of  the  appeal  neces- 
sarily depends"  (Id.  p.  67) — that  decision  is  not  a  decis- 
ion or  judgment  of  the  Supreme  Court  of  California. 
In  pages  318-324  above  this  is  shown  to  be  the  actual 
state  of  the  case. 

Also  by  virtue  of  express  and  positive  provisions  of 
the  Constitution  and  of  the  fact  that  no  hearing  of  the 
case  was  allowed,  the  final  decision  for  the  two  New- 
mans is  utterly  null  and  void.  On  pages  307-315  and 
also  on  pages  127-137  above  this  also  is  shown  to  be 
the  actual  state  of  the  case. 


393 

Still  further,  because  of  the  rank  dishones  t  and 
malice  and  wickedness  out  of  which  that  final  decision 
was  made,  it  is  utterly  void  not  only  in  natural  justice 
but  in  legal  effect.  In  the  words  of  the  Supreme  Court 
of  the  Qnited  States  (quoted  on  p.  189  above),  "in  de- 
termining what  is  due  process  of  law  regard  must  be 
had  to  substance,  not  to  form." 

And  still  futher,  because  of  the  fact  that  the  final 
decision  for  the  two  Newmans  is  wholly  the  work  of 
The  Southern  Pacific  Company,  it  is  not  a  decision  or 
judgment  of  the  Supreme  Court  of  California. 

The  suit  is  therefore  still  pending  in  the  Supreme 
Court  of  California.  The  suit  has  not  only  not  been 
decided:  it  has  not  even  been  heard. 


The  Importance  of  the  Accounting  Suit. 

Here  is  a  suit,  the  suit  of  a  widow  and  lier  two 
daughters,  the  family  left  unprotected  by  the  death  of 
their  natural  protector — that  natural  protector  a  uni- 
versally esteemed,  widely  beloved  and  most  worthy 
mercbant  of  San  Francisco  (the  late  John  Levinson). 
The  suit  has  been  regularly  taken  into  the  Supreme 
Court  of  California  by  that  family  thus  left  unprotected. 
The  taking  of  the  suit  into  the  Supreme  Court  of  Cali- 
fornia was  accomplished  only  by  a  necessary  expendi- 
ture of  nearly  $900  in  money  actually  paid  for  the 
mere  printing  of  the  record  and  the  brief,  an  expendi- 
ture absolutely  required  by  the  established  rules  of  the 
Court.  And  now,  upon  no  other  pretext  than  that  of 
the  wickedness  described  in  the  foregoing  pages,  even 
a  hearing  of  the  case  has  been  and  is  still  being  denied, 


394 

and   the   case  declared,  with    wicked  falsehood,  to   be 
decided. 

The  suit  is  pending  in  the  Supreme  Court  of  Cali- 
fornia, and  it  is  the  moral,  the  natural,  the  just,  and 
the  constitutional  right  of  that  widow  and  her  daugh- 
ters, and  of  the  administrator  of  the  estate  of  John  Lev- 
inson,  as  their  representative,  to  have  the  case  heard 
by  the  Court  and  full,  ample  and  speedy  justice 
awarded. 

The  Issuance  of  the  Remittitur  is  Immaterial. 

The  fact  that  the  clerk  of  the  Supreme  Court  issued 
a  remittitur  in  December,  1896,  as  above  stated,  does 
not  in  even  the  least  degree  affect  the  state  of  the  case 
as  a  suit  still  pending  in  the  Court  or  the  right  to  have 
the  suit  heard  and  decided. 

The  Supreme  Court  has  power  to  recall  a  remittitur 
in  every  case  where  it  has  been  issued  im providently. 
This  was  expressly  decided  in  the  case  of  Rowland  vs. 
Kreyenhagen^  24  Cal.,  59. 

And  besides,  the  Constitution  of  California,  in  the  4th 
Section  of  the  6th  Article,  declares,  concerning  the 
Supreme  Court: 

"The  Court  shall  also  have  power  to  issue  writs 
of  mandamus  *  *  *  and  all  other  writs  neces- 
sary or  proper  to  the  complete  exercise  of  its  ap- 
pellate jurisdiction. 


2.    The  Judgment  of  Disbarment  Has  Been  and 
Is  a  Continuing  Crime. 

The  judgment  of  disbarment  has  been  ever  since  it 
was  made,  in  legal  effect,  as  well  as  upon  every  princi- 


395 

pie  of  morality,  justice  and  right  which  is  applicable  to 
it,  utterly  null  and  void  and  entitled  only  to  disrespect, 
contempt  and  execration.  This  has  been  shown  on 
pages  107-289  above.  Ever  since  that  disbarment  was 
inflicted,  it  has  been  the  bounden  duty  of  the  Supreme 
Court  of  California,  and  the  sworn  duty  of  every  Jus- 
tice of  the  Court,  to  declare  it  to  be  void  and  to  set  it 
aside  and  to  do  so  upon  an  express  and  full  statement 
of  the  just  grounds  for  so  doing.  And  ever  since  the 
false  and  libelous  reports  of  the  case  published  in  the 
California  Reports,  as  above  stated,  it  has  been  the 
bounden  duty  of  the  Court,  and  of  every  Justice  of  it, 
to  make  and  publish  in  the  California  Reports  such  a 
report  of  the  decision  setting  that  disbarment  aside  as 
to  furnish  a  full  retraction  by  the  State  of  California  of 
the  infamous  libels  which  have  been  published,  in  the 
name  of  the  State,  in  those  false  reports  of  the  case. 


3.   The  Guaranty  of  the  American  People. 

In  the  14th  amendment  of  the  Constitution  of  the 
United  States,  which,  as  one  of  the  results  of  the 
civil  war,  was  adopted  in  1868,  the  American  people 
have  declared,  among  other  things : 

"  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privilege  or  immunities  of  citi- 
zens of  the  United  States ;  nor  shall  any  State 
deprive  any  person  of  life,  liberty  or  property  with- 
out due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws." 


396 

And  also  (Art.  VI): 

"  This  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof 
*  *  shall  be  the  supreme  law  of  the  land  ;  and 
the  Judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding." 

Take,  now,  an  illustration  from  the  law  of  continuing 
nuisances.  It  is  an  elementary  rule  of  law  familiar  to 
every  lawyer — a  rule  which  is  only  the  expression  of  a 
plain  truth, — that  every  continuation  of  a  nuisance  is 
itself  a  renewed  perpetration  of  that  nuisance.  For  the 
reasons  above  stated,  and  by  virtue  of  the  guaranties  of 
the  Constitution  of  the  United  States,  just  quoted,  it  is 
likewise  the  plain  truth  that  ever  since  the  disbarment 
was  inflicted  its  authors  have  every  day  deliberately, 
maliciously  and  wickedly  inflicted  it  anew,  and  since 
the  respective  decisions  of  the  three  appeals,  as  above 
stated,  their  authors  have  deliberately,  maliciously  and 
wickedly  perpetrated  them  anew.  All  these  outrages 
— after  having  been  already  kept  up  for  years — are 
being  every  day,  with  all  the  malice,  the  outrage  and 
the  extreme  of  wickedness  which  in  the  preceding  pages 
are  pointed  out  in  detail,  falsely,  deliberately  and  wick- 
edly persisted  in  and  renewed. 


Within  the  last  seven  months  certain  persons  have 
interviewed  certain  of  the  corrupt  Judges  of  the  Supreme 
Court  above  named,  for  the  purpose  of  trying  to  open  a 
way  for  the  removal  of  the  disbarment,  and  have  told 
me  that  the  Associate  Justices  so  interviewed  have 
professed  a  wish   to    remove  the   disbarment,  but    that 


397 

they  profess  to  defer  to  the  Chief  Justice,  Wm.  H. 
Beatty,  for  the  course  to  be  pursued.  Within  the  same 
period  Wm.  H.  Beatty,  the  Chief  Justice,  has  several 
times  sent- me  a  verbal  message  to  the  effect  that,  if  I 
will  put  myself  into  the  hands  of  some  attorney-at-law, 
pledging  m3^self  beforehand  to  do  whatever  such  attor- 
ney, after  consulting  with  him,  may  prescribe, — that 
upon  my  compliance  with  the  terms  which  are  to  be 
thus  communicated,  I  shall  be  allowed  to  resume  the 
practice  of  my  profession.  It  is  of  course  evident  that 
what  he  and  his  associates  are  endeavoring  to  extort  is 
that  I  shall  make  a  public  false  declaration  that  all  the 
unspeakable  injustice,  cruelty,  oppression  and  outrage 
stated  in  the  preceding  pages  has  been  just,  proper  and 
lawful ;  that  the  cause  of  my  clients,  Mrs.  Levinson 
and  her  daughters,  against  the  two  Newmans,  was  and 
is  without  foundation,  '*an  imaginary  state  of  facts 
founded  on  no  evidence^' ;  and  such  a  declaration  as  to 
furnish  further  whitewash  for  the  unspeakable  scoun- 
drel Associate  Justice  Ralph  C.  Harrison.  Such  is  the 
bribe  which  these  false  and  corrupt  Judges  seek  to  extort. 
The  reader  must  not  suppose  that  it  is  in  self-lauda- 
tion that  I  state  my  refusal  to  comply  with  terms  so 
infamous,  my  refusal  to  betray  truth,  justice,  the  funda- 
mental rights  of  a  human  being  and  the  cause  of  my 
clients.  I  should  be  fool  indeed,  not  to  be  sensible  that 
by  complying  with  such  terms,  in  submitting  to  such 
extortion,  I  should  be  only  making  myself  irretrievably 
a  party  to  my  own  destruction.  I  state  the  fact  only 
to  indicate  still  further  the  unspeakable  baseness  and 
wickedness  of  the  false  and  corrupt  judges  here  exhib- 
ited. See  the  passage  from  Sir  Edward  Coke,  quoted 
on  page  174  above. 


398 

VII. 

other  Efforts  That  Have   Been  Made  Seeking 

Redress. 


1.     A  Memorial  to  the  Legislature. 

After  the  final  corrupt  decision  for  the  two  Newmans 
and  the  refusal  to  set  it  aside,  I  prepared  a  memorial 
addressed  to  the  Legislature  of  the  State.  In  the 
memorial  I  stated  all  the  outrages  which  up  to  that 
time  had  been  committed  by  the  Justices  of  the  Supreme 
Court  upon  Mrs.  Levinson  and  her  daughters  and  my- 
self, as  stated  above,  except  only  the  participation  of 
The  Southern  Pacific  Company;  and  I  asked  for  the 
removal  of  the  seven  corrupt  Justices  of  the  Supreme 
Court  of  the  State,  because  of  their  corrupt  misconduct 
in  office.  The  reason  why  I  omitted  to  charge  in  the 
memorial  that  those  outrages  were  the  work  of  The 
Southern  Pacific  Company  was  that  up  to  that  time  I 
had  not  been  able  to  get  the  proof  of  that  fact.  I 
printed  the  memorial  as  a  book  entitled  "The  Corrupt 
Judges  of  the  Supreme  Court  of  the  State  of  Califor- 
nia," and  in  March,  1897,  the  Legislature  being  then  in 
session — sent  a  copy  of  it  to  each  House  of  the  Legis- 
lature, and  placed  a  copy  of  it  in  the  hands  of  every 
Senator,  and  of  every  member  of  the  Assembly.  I  also 
distributed  hundreds  of  copies  of  the  memorial  through- 
out the  State.  To  that  memorial  the  only  response  was 
silence.  The  Justices  kept  silent.  The  Legislature 
neither  took  any  action  nor  did  either  House  even  pre- 
tend to  make  or  to  attempt  investigation. 


399 

2.     A  Suit  for  Damages,  in  the  United  States  Circuit  Court. 
Tlie  Hand  of  The  Southern  Pacific  Company. 

In  addition  to  the  guaranty  quoted  on  page  395 
above,  the  14th  Amendment  of  the  Constitution  of  the 
United  States  contains  a  provision  as  follows: 

"Section  5.  The  Congress  shall  have  power  to 
enforce,  by  appropriate  legislation,  the  provisions 
of  this  article." 

Upon  that  express  authorization  the  Congress  passed 
on  April  20,  187 1,  an  act  entitled  ^''An  Act  to  enforce 
the  Provisions  of  the  Fourteenth  Amendment  to  the  Con- 
stitutio7t  of  the  United  States^  and  for  other  purposes.''^ 

The  first  Section  of  this  Act  was  subsequently  made 
Section  1979  of  the  Revised  Statutes  of  the  United 
States,  which  is  as  follows: 

"Every  person  who,  under  color  of  any  statute, 
ordinance,  regulation,  custom  or  usage,  of  any 
State  or  Territory,  subjects,  or  causes  to  be  sub- 
jected, any  citizen  of  the  United  States  or  other 
person  within  the  jurisdiction  thereof,  to  the  depri- 
vation of  any  rights,  privileges,  or  immunities  se- 
cured by  the  Constitution  and  laws,  shall  be  liable 
to  the  party  injured  in  an  action  at  law,  suit  in 
equity,  or  other  proper  proceeding  for  redress.'' 

Other  provisions  enacted  by  Congress  and  placed  in 
the  Revised  Statutes  have  assigned  to  the  Circuit  Court 
of  the  United  States  the  jurisdiction  of  every  such 
"action  at  law,  suit  in  equity,  or  other  proper  proceed- 
ing for  redress.'' 

By  virtue  of  those  provisions  of  the  Constitution  of 
the  United  States  and  of  the  acts  of  Congress  every 
person  who  as  Justice  of  the  Supreme   Court  of  Cali- 


400 

foruia  took  part  in  the  crime  of  the  disbarment  (:>r  in 
the  final  corrupt  decisions  for  the  two  Newmans,  and 
also  their  instigators,  supporters  and  confederates,  The 
Southern  Pacific  Company,  the  two  Newmans,  J.  B. 
Reinstein,  M.  S.  Eisner,  E.  R.  Taylor  and  Robert  Y. 
Hayne,  are  all  liable  for  the  damages  to  the  persons 
injured;  and  it  is  the  jurisdiction  and  duty  of  the  Cir- 
cuit Court  of  the  United  States  to  enforce  that  liability. 
That  this  is  so  'any  intelligent  person  who  is  not  a 
lawyer  may  see  for  himself  by  looking  at  the  Constitu- 
tion and  the  act  of  Congress.  The  lawyer  may  further 
satisfy  himself  that  such  is  the  case  by  examining  the 
authorities  cited  in  the  foot-note.* 

As  soon  as  I  had  collected  sufficient  proof  that  The 
Southern  Pacific  Company  were  the  actual  authors  of 
the  outrages,  I  commenced  in  September,  1897,  ^^  ^^^^ 
United  States  Circuit  Court  in  San  Francisco,  a  suit 
for  damages  against  the  Justices  Ralph  C.  Harrison, 
Wm.  H.  Beatty,  Charles  H.  Garoutte,  Frederick  W. 
Henshaw,  Thos.  B.  McFarland,  Jackson  Temple  and 
Wm.  C.  Van  Fleet,  and  John  J.  De  Haven  and  Wm.  F. 
Fitzgerald  and  also  against  the  two  Newmans  and  the 
three  attorneys  who  had  been  most  plainly  in  the  con- 
spiracy, namely,  J.  B.  Reinstein,  M.  S.  Eisner  and 
Robert  Y.  Hayne,  a  suit  for  the  damages  caused  to  me 
in  my  personal  capacity  by  the  disbarment.  Wm.  F. 
Fitzgerald  was  then  the  Attorney-General  of  the  State; 
and  John  J.  De  Haven  had  become  the  United  States 
District  Judge  for  the  Northern  District  of  California. 
I  did  not  include  The  Southern  Pacific  Company  in  the 
suit,  and  I  carefully  refrained  from  making  any  indica- 

*  M'Culloc'i  V.  Mary/and ^ 'Wheat.  400,  4.21;  E:t:  rarie  Virginia  lOo  U.  S.  339;  Civil 
Rights  Cases  109  U.  vS  3.;  Angle  vs.  Omaha  Co.  151  U.  S.  i;  Boston  vs.  Simmons  150  Mass. 
461;  Reg.  vs.  IVilson  7  Cox  C.  C.  190;  Palmer  vs.  Concord  48  N.  H.  211;  Greenl.  l^v.  ,Vol.  i  g 
III,  Vol.  3H93,  94- 


40I 

tion  that  I  knew  or  suspected   that  the  disbarment  was 
the  work  of  The  Southern  Pacific  Company. 

The  wisdom  of  so  carefully  refraining  from  any  indi- 
cation that  I  knew  or  even  suspected  that  The  South- 
ern Pacific  Company  were  the  authors  of  the  disbar- 
ment or  even  that  they  had  any  hand  in  it  was 
immediately  apparent. 

In  the  first  place,  out  of  the  supreme  confidence  that 
the  hand  of  that  evil  and  terrible  organization  had 
been — as  it  usually  is — so  well  concealed  that  their 
victim  would  not  even  attempt  to  show  that  they  were 
the  real  authors  of  the  crime — out  of  that  supreme  con- 
fidence it  happened  that  The  Southern  Pacific  Com- 
pany both  assumed  the  defense  of  the  suit  and  consented 
to  a  trial.  The  attorney  who  appeared  openly  to  rep- 
resent the  Justices  Ralph  C.  Harrison,  Wm.  H.  Beatty, 
Charles  H.  Garoutte,  Frederick  W.  Henshaw,  Thos.  B. 
McFarland,  Jackson  Temple  and  Wm.  C.  Van  Fleet, 
and  the  ex-Justice  John  J.  De  Haven,  was  none  otlier 
than  John  Garber,  the  chief  court  attorney  of  The 
Southern  Pacific  Company.  And  all  the  persons  whom 
I  had  sued  appeared  at  the  same  time,  challenged  me, 
all  in  precisely  the  same  form,  to  prove  my  charges, 
and  admitted,  all  in  the  same  form,  that  if  I  could  do 
so  I  was  entitled  to  a  verdict.  The  Justices  whom  I 
had  sued  gave  out  to  their  friends  that  now  they  were 
going  to  obtain  the  verdict  of  a  jury  for  their  vindica- 
tion; and  The  Southern  Pacific  Company's  attorneys 
representing  them  made  extensive,  unsparing  and  elab- 
orate preparation  to  try  the  case  by  jury. 

The  case  was  accordingly,  with  the  express  consent 
of  all  parties,  set  for  trial  by  jury  on  Jan.  ii,  1898.  On 
that  day  all  the  parties  appeared  in  the  United  States 


402 

Circuit  Court  in  San  Francisco  to  try  the  case.  I,  of 
course,  appeared  alone  to  conduct  my  side  of  the  case  ; 
for  no  lawyer  of  California  would  have  dared  to  assist 
me,  or  to  appear  at  my  side  in  such  a  trial.  Three 
well-known  attorneys  of  The  Southern  Pacific  Com- 
pany, with  two  other  attorneys  to  assist  them,  appeared 
for  the  defense.  To  influence  the  Court  and  jury 
against  me,  all  the  great  morning  newspapers  of  San 
Francisco  had  been  enlisted  to  misrepresent  and  ridicule 
the  case,  and  were  actively  engaged  in  so  doing.  With 
the  express  consent  of  all  parties,  a  jury  of  twelve  men 
were  empanelled  and  sworn  to  try  the  case. 

Before  the  jury  were  called,  before  I  had  given  any 
indication  that  I  knew  or  even  suspected  that  The 
Southern  Pacific  Company  were  the  authors  of  the  dis- 
barment, I  had  Wm.  H.  Mills  and  all  his  editors  of  The 
Record-JJyiion  subpoenaed  and  brought  into  court  as 
witnesses,  and  I  made  sure  also  that  other  witnesses 
equally  important  were  within  reach,  and  also  was  care- 
ful to  give  no  hint  of  who  any  of  those  other  witnesses 
were,  so  as  to  avoid  their  being  sent  away  where  they 
could  not  be  reached  by  subpoena. 

As  soon  as  the  jury  were  sworn  to  try  the  case,  I 
made  them  a  statement  of  the  evidence  which  I  was 
about  to  produce.  In  that  statement  to  the  jury  I 
exhibited  for  the  first  time  the  proof  that  the  crime  of 
the  disbarment  and  the  false  and  libelous  report  of 
it  published  in  the  California  Reports,  and  the  denial  of 
justice  to  Mrs.  Levinson  and  her  daughters,  stated  in 
preceding  pages  of  this  paper,  were  the  work  of  The 
Southern  Pacific  Company,  that  it  had  all  been  done  by 
The  Southern  Pacific  Company  to  reward  and  support 
their  agent,  the  Associate  Justice   Ralph   C.  Harrison, 


403 

and  that  the  persons  who  as  Justices  of  the  Supreme 
Court  of  California  had  laken  part  in  those  outrages 
were  all  of  them  corrupt  ag-ents  of  The  Southern  Pacific 
Company.  I  specified  in  particular  the  evidence 
pointed  out  in  preceding  pages  of  this  paper;  but  I  had 
also  at  hand,  as  I  then  stated  to  the  jury,  other  and 
exceedingly  important  evidence — evidence  which,  as  I 
then  told  the  jury,  I  still  had  to  refrain  from  stating 
specifically,  because  if  I  should  have  told  or  even  hinted 
at  the  specific  facts,  the  witnesses  by  whom  I  would 
have  had  to  prove  those  facts  would  without  doubt  have 
been  spirited  away  beyond  the  reach  of  a  subpoena.  I 
of  course  still  refrain  from  specifying  that  other  evi- 
dence, and  for  the  same  reason. 


The  Immediate  Breaking  Down   of  the   Defense. 

Immediately  upon  my  making  that  statement  to  the 
jury,  the  defense  broke  down.  Though  I  was  conduct- 
ing the  case  in  person  and  alone,  though  they  had  on 
their  side  all  advantages  except  the  truth,  though  tiiey 
had  joined  in  demanding  a  trial  of  the  case  by  jury  a  id 
had  made  most  extensive  and  elaborate  preparation  to 
try  the  case  by  jury  and  had  taken  part  in  having  a 
jury  impaneled  and  sworn  to  try  the  case, — when  tluy 
heard  my  statement  of  the  evidence  which  I  was  abjut 
to  produce  and  found  out  what  witnesses  I  had  already 
brought  into  court,  The  Southern  Pacific  Company's 
attorneys,  who  were  conducting  the  defense,  addressed 
the  Federal  Judge  who  was  presiding  and  set  up  the 
false  claim  that  the  law  did  not  authorize  the  trial  of 
such  a  case  or  entitle  me  to  any  relief,  and  asked  that 
upon  that  false  ground  the  case  be  taken  from  the  jury 


404 

and  dismissed.  The  Federal  Judge  presiding  imme- 
diately produced  and  read  a  long  written  opinion  filled 
with  extreme  falsehood  and  miserable  prevarication 
and,  setting  aside  the  plain  provisions  of  the  Constitu- 
tion of  the  United  States — setting  aside  the  plain  and 
positive  guarantee  of  the  American  people — forbade  the 
production  of  any  evidence,  withdrew  the  case  from  the 
]  ury  and  ordered  it  dismissed.  This  was  in  January,  1 898 , 
and  in  the  United  States  Circuit  Court  in  San  Francisco. 
The  Federal  Judge  who  presided  was  Hiram  Knowles, 
the  United  States  District  Judge  for  Montana.  By 
means  and  for  reasons  alike  unknown  to  me,  he  had 
been  brought  from  Montana  to  try  the  case.  His 
opinion  may  be  seen  in  Volume  85  of  the  Federal  Re- 
porter at  p.  139,  where  it  is  said  to  have  been  delivered 
^'  orally." 

That  ending  of  the  case  was  plainly  a  most  substan- 
tial confession,  both  by  the  Justices  of  the  Supreme 
Court  of  California  and  by  The  Southern  Pacific  Com- 
pany,— a  most  substantial  and  convincing  confession 
that  they  are  guilty  of  all  the  charges  made  against 
them  in  this  paper. 

W.  W.  Foote  and  Ralph  C.   Harrison. 

One  of  the  attorneys  who  appeared  at  this  trial  was 
W.  W.  Foote,  who  announced  that  he  had  been  em- 
ployed specially  to  represent  Justice  Ralph  C.  Harrison. 
Here  was  Justice  Ralph  C.  Harrison,  the  traitor  who 
sold  his  clients  Mrs.  Fanny  Levinson  and  her  daugh- 
ters to  their  enemies  the  two  Newmans,  employing  as 
his  special  champion  W.  W.  Foote,  the  traitor  who 
sold  his  clients  James  P.  and   Frederick   A.   Merritt   to 


405 

their  enemy  Judge  Stanly  (see  pages  64-75  above) — 
birds  of  a  feather — traitor  appearing  as  champion  of 
traitor.  Now,  as  is  well  known,  the  forte  of  W.  W. 
Foote  is  that  of  a  bully  and  blackguard.  Big  and  burly, 
his  tactics  are  to  embarrass  the  opposing  counsel  and 
the  opposing  witnesses  with  insolence,  browbeating  and 
all  manner  of  blackguardism.  Apparently  it  was  for 
such  work  that  Justice  Ralph  C.  Harrison  emplo3'ed 
W.  W.  Foote  at  this  trial,  for  he  forthwith  began  those 
tactics  upon  me.  For  instance:  as  I  was  making  to  the 
jury  my  statement  of  the  evidence,  he  arose,  swaggered 
up,  and  breaking  in  upon  me  insolently,  demanded  in 
his  bullying,  browbeating  way  whether  I  meant  that  I 
would  show  a  connection  between  Justice  Harrison  and 
the  articles  in  The  Recoi^d-  Union  and  The  Evening  Post^ 
and  added  with  great  violence  and  an  extremely  in- 
sulting tone,  "Yuh  ca-a-nH  do  it,  and  yuh  kne-o-ow 
yuh  can't."  But  that  was  his  last  shot.  I  replied, 
^'Wait  only  a  few  minutes,  Mr.  Foote,  and  you  will  see 
that  the  case  reaches  you  too."  I  then  said  to  the  jury 
that  a  part  of  the  evidence  to  be  produced  showing  that 
Justice  Ralph  C.  Harrison  and  the  other  Justices  of 
the  Supreme  Court  of  California,  his  associates,  who 
had  taken  part  in  the  disbarment,  were  the  corrupt 
agents  of  The  Southern  Pacific  Company — would  be 
the  fact  that  on  December  i,  1894,  those  Justices  had 
made  a  false  decision  in  the  Estate  of  Catherine  M. 
Garcelon^  for  the  purpose  of  giving  to  The  Southern  Pa- 
cific Company  a  bit  for  the  mouth  of  W.  W.  Foote,  and 
thereby  to  enable  The  Southern  Pacific  Company, 
while  hoodwinking  the  people  of  the  State,  to  control 
the  defense  of  the  injunction  suit  which  they  were  then 
intending  to  bring  and  which  they  afterwards  did  bring 


4o6 

against  the  Board  of  Railroad  CommiSvSioners  to  prevent 
a  reduction  in  the  charges  for  carrying  freight  upon 
their  railroads.  I  then  stated  also  that  I  should  show 
that  the  defendants  Wm.  F.  Fitzgerald  and  Robert  Y. 
Hayne,  the  other  attorneys  who  pretended  to  represent 
the  people  in  that  injunction  suit,  were  only  tools  of 
The  Southern  Pacific  Company.  The  Judge  presiding 
(Judge  Knowles)  then  said  to  me  that  Jie  could  not  see 
how  the  decision  in  the  Estate  of  Catherine  M.  Garce- 
lon  gave  any  control  of  W.  W.  Foote;  and  to  this  I  re- 
plied that  I  would  show  how  it  so  operated  when  I  came 
to  produce  the  evidence.  At  the  same  time  I  had  a 
subpoena  served  upon  W.  W.  Foote  directing  him  to 
attend  as  a  witness  and  to  bring  his  contract  with  James 
P.  and  Frederick  A.  Merritt. 

The  effect  upon  W.  W.  Foote  was  instantaneous  and 
final.  Up  to  this  time  he  had  been  trying  industriously 
to  bully  and  blackguard  me;  and  whenever  the  Com  t 
took  recess,  would  instruct  the  newspaper  reporters  who 
were  in  attendance,  how  to  misrepresent  and  ridicule  me 
in  their  articles.  '  His  brother  also  (one  H.  S.  Foote) 
had  planted  himself  close  in  front  of  me  as  I  was  ad- 
dressing the  jury,  and  there  opened  himself  upon  me 
as  an  active  and  persistent  battery  of  great  grins, 
grimaces  and  abdominal  quaking — after  the  manner  of 
ancient  Chinese  warfare.  But  as  soon  as  I  had  made 
that  statement  concerning  W.  W.  Foote  and  had  caused 
him  to  be  served  with  that  subpoena,  instantly  both  he 
and  his  coadjutor  brother  ^'ceased  from  troubling." 
The  brother  at  once  limbered  up  his  battery,  ''advanced 
to  the  rear,"  and  thereafter  remained  in  a  distant  part 
of  the  room,  without  grin  or  grimace,  an  "innocuous 
desuetude."     At  the  same  time  W.  W.  Foote  withdrew 


407 

from  the  table  used  by  counsel  in  the  case,  took  up  a 
position  at  the  side  of  the  room  among  the  spectators 
and  remained  quiet,  uttering  not  another  word  in  the 
case — traitor  attorney  abandoning  traitor  client.  Sev- 
eral of  the  spectators  expressed  to  me  their  wonder  at 
what  it  could  be  that  had  so  suddenly  and  completely 
stunned  W.  W.  Foote.  To  a  few  persons  I  imparted 
the  secret.  I  had  only  put  my  hand  upon  the  rein  con- 
necting with  the  bit  which  had  been  placed  in  his  mouth 
by  The  Sonthern  Pacific  Company,  as  stated  on  pages 
64-75  above. 

Neither  of  those  humans — W.  W.  Foote  and  his 
brother — had  ever  had  any  provocation  from  me.  In 
attempting  their  practices  against  me,  they  no  doubt 
thought  that  such  a  course  would  be  of  some  material 
advantage  to  themselves.  They  speedily  saw  that  flight 
was  more  to  their  advantage — and  they  fled. 


A  Sample  Piece  of  Trickery  Characteristic  of  The  Southern 
Pacific  Company. 

Among  the  practices  resorted  to  at  this  trial,  the  fol- 
lowing deserves  mention.  It  illustrates  the  character  of 
The  Southern  Pacific  Company. 

The  statute  prescribing  the  order  of  the  trial  (C.  C. 
P.  of  Cal.,  §607)  is  as  follows  : 

"When  the  jury  has  been  sworn  the  trial  must  proceed  171 
the  following  order^  unless  the  Judge  for  special  reasons 
otherwise  directs:  i.  The  plaintiff,  after  stating  the  issue 
and  his  case,  must  produce  the  evidence  on  his  part.  2. 
The  defendant  may  then  open  his  defeyise  and  offer  his  evi- 
dence in  support  thereof,"  etc.,  etc. 

The  defendants  had  made  elaborate  preparation  to 
try  the  case  by  jury.     To  that  end,  John  Garber,  the 


4o8 

leading  court  attorney  of  The  Southern  Pacific  Com- 
pany, who  appeared  as  the  leading  counsel  on  the  part 
of  those  of  the  defendants  who  were  Justices  of  the  Su- 
preme Court  of  the  State,  had  prepared,  with  his  charac- 
teristic industry  and  cunning,  an  elaborate  speech  to  be 
delivered  by  way  of  opening  the  defense.  By  virtue  of 
the  settled  practice  follow^ed  in  trials,  as  well  as  the 
express  provision  of  the  statute  just  quoted,  the  time 
for  him  to  deliver  that  speech  w^ould  have  been  after  I 
had  put  in  the  evidence  which  I  had  stated  that  I  would 
produce.  When,  however,  it  was  seen  from  my  open- 
ing statement  that  the  evidence  I  was  about  to  produce 
could  not  be  met,  the  defendants  resolved,  with  the  help 
of  the  corrupt  Federal  Judge  who  was  presiding,  to  stop 
the  case  then  and  there.  But  before  making  the  motion, 
John  Garber,  their  leading  counsel,  stood  up  and  re- 
quested the  Court  to  allow  him  to  make  to  the  jury,  at 
that  time^  his  speech  opening  the  defense.  No  reason 
was  given  for  so  unusual  a  proceeding,  but,  though  I 
opposed  it,  the  request  w^as  at  once  granted.  He  then, 
upon  the  false  pretense  of  stating  what  he  intended  to 
prove,  delivered  to  the  jury  his  carefully  prepared 
speech,  professing  to  justify  all  the  outrages  which  had 
been  put  upon  me,  repeating  all  the  trickery  and  lies 
of  the  disbarment,  and  pouring  out  upon  me  lies  upon 
lic^?,  slander  upon  slander,  and,  in  the  form  of  announc- 
ing that  speech,  the  daily  newspapers  were  made  to 
publish  against  me  libelous  articles — that  being  the 
very  purpose  he  had  in  view  in  making  the  speech. 
One  of  the  lies  of  that  speech  was  that  my  brief  had 
been  announced  in  the  newspapers  before  it  was  filed  in 
the  of&ce  of  the  clerk  of  the  Supreme  Court;  another 
was  that  my  brief  had  been  prepared,  not  in  good  faith, 


409 

but  to  blackmail  the  Justices  of  the  Supreme  Court. 
He  also  declared  that  if  only  an  apology  would  be  made 
the  disbarment  would  be  immediately  withdrawn — and 
The  Examiner  newspaper  was  made  to  publish  that 
offer.  As  soon  as  John  Garber  had  finished  that  speech 
and  had  sat  down — a  speech  full  of  lies — mean,  scoun- 
drelly lies — a  speech,  the  very  foundation  of  which  was 
a  lie,  for  it  was  delivered  upon  the  lying  pretense  of  an 
intenticm  to  produce  evidence — as  soon  as  he  had  sat 
down^  one  of  his  colleagues  arose  and  asked  the  Court 
to  forbid  the  introduction  of  evidence  and  to  dismiss  the 
suit  then  and  there,  and  the  motion  was  forthwith 
granted  as  above  stated. 

Such  is  John  Garber,  the  chief  court  attorney  of  The 
Southern  Pacific  Company. 


The  Hand  of  The  Southern  Pacific  Company. 

The  facts  which  occurred  at  that  trial,  and  which 
have  just  been  stated,  are  further  evidence,  and  a  con- 
fession that  the  particular  crimes  stated  in  the  preced- 
ing pages  were  committed  and  have  been  upheld  by  The 
Southern  Pacific  Company,  and  that  The  Southern 
Pacific  Company  own  the  Supreme  Court  of  California. 
So  well  had  I  concealed  the  fact  that  I  had  proof  of  the 
hand  of  The  Southern  Pacific  Company  in  the  crime 
which  had  been  committed  upon  me,  that,  in  utter 
ignorance  that  I  could  produce  any  such  proof,  The 
Southern  Pacific  Company  came  forward  with  their 
own  private  attorneys  and  assumed  the  defense  of  the 
suit;  and  every  one  of  the  Justices  who  was  a  defendant 
in  the  suit  came  into  court  displaying,  in   the  attorney 


who  appeared  for  him,  a  badge  still  further  certifying 
that  he  was  owned  by  The  Southern  Pacific  Company. 
At  the  foot  of  the  answer  filed  in  the  suit  by  each  Jus- 
tice respectively,  the  name  of  John  Garber  appeared  as 
his  attorney — John  Garber,  the  chief  court  attorney  of 
The  Southern  Pacific  Company.  As  already  stated, 
John  Garber  also  appeared  in  court  as  the  leading  coun- 
sel of  the  defense.  R.  B.  Carpenter,  known  as  "Judge 
Carpenter,"  another  agent  of  The  Southern  Pacific 
Company,  also  appeared  at  the  trial  and  assisted  act- 
ively in  the  defense.  W.  W.  Foote  was  also  produced 
and  set  upon  me,  as  already  stated.  Peter  F.  Dunne,  a 
skillful  jury  lawyer  employed  by  The  Southern  Pacific 
Company,  was  also  kept  in  attendance  in  the  court 
room  to  assist  before  the  jury.  It  had  been  the  firm 
and  resolved  intention  of  The  Southern  Pacific  Com- 
pany who  were  defending  the  suit,  and  of  the  persons 
named  as  the  defendants,  and  of  the  Federal  Judge 
presiding — it  was  the  settled  and  resolved  intention  of 
all  of  them  acting  in  concert — to  try  the  case  by  jury 
and  to  obtain  a  verdict  of  the  jury  against  me.  And 
that  intention  was  abandoned  only  when  it  was  seen, 
not  only  what  evidence  I  was  about  to  introduce,  but, 
still  further,  how  completely  The  Southern  Pacific 
Company  and  their  agents,  the  corrupt  judges  of  the 
Supreme  Court  of  California,  had  been  led  into  an  am- 
buscade and,  in  the  fact  that  it  was  the  attorneys  of  The 
Southern  Pacific  Company  who  were  conducting  the 
defense,  made  to  furnish  further  evidence  that  it  was 
The  Southern  Pacific  Company  who  had  committed 
upon  me  and  kept  up  the  great  crime  of  the  disbarment. 
And  the  fact  that  as  soon  as  all  this  was  seen,  the  per- 
sons named  as  defendants   and  The    Southern  Pacific 


411 

Company  who  were  conducting  the  defense  and  the 
Federal  Judge  presiding — all  acting  in  concert — the 
fact  that  they  then  instantly  put  an  end  to  the  trial 
and  wheeled  about  and  fled^  is  itself  a  manifest  proof,  a 
confession  that  The  Southern  Pacific  Company  made 
the  disbarment  and  have  kept  it  up,  and  along  with  it 
have  perpetrated  and  kept  up  the  outrages  committed 
by  means  of  the  Supreme  Court  of  California  upon 
Mrs,  Levinson  and  her  daughters,  as  shown  in  the  pre- 
ceding pages — and  that  The  Southern  Pacific  Company 
own  the  Supreme  Court  of  California. 


The   rioral    Power  of   an  American  Jury. 

At  this  trial  all  the  Justices  of  the  Supreme  Court  of 
California,  the  Attorney-General  of  the  State,  a  United 
States  District  Judge,  and  the  enormous  combination  of 
railroad  and  steamship  corporations  called  The  Southern 
Pacific  Company,  supported  by  all  the  newspapers  of 
San  Francisco,  by  all  the  social  influences  which  such  a 
combination  carried  with  it,  backed,  too,  by  the  corrupt 
Federal  Judge  who  presided  at  the  trial, — all  that  combi- 
nation broke  down  ignominiously  before  only  one  single 
American  citizen,  appearing  against  them  without  an 
advocate, — broke  down  ignominiously  only  because  that 
one  citizen  was  armed  with  the  truth  and  sustained  by 
the  presence  of  an  American  jury  of  twelve  men.  All 
that  gigantic  combination,  though  armed  and  in- 
trenched with  all  the  power  of  both  the  State  and  Fed- 
eral governments,  quailed  and  fled  under  the  lash  of 
truth — a  lash  laid  unsparingly  on — before  the  very  jury 
whom    they  themselves  had  taken    part  in    selecting. 


412 

The  outcome  of  the  trial  was  a  mighty  testimonial  to 
the  power  of  truth  and  the  virtues  of  an  American  jury. 
The  particular  jury  to  whom  so  great  a  compliment 
was  paid  were  the  following  residents  of  San  Francisco  : 

David  E.  Allison, 
Charles  W.  Doe, 
James  Hamilton, 
Walter  C.  Rugh, 
MoNSON  Russell, 
Walter  B.  Webster, 
Robert  H.  Daley, 
John  C.  Adelsdorfer, 
David  H.  Beede, 
Edward  McGuire, 
Emile  Cucuel, 
Lewis  E.  Lee. 


3.     The  Making  of   Another  Appeal  to    the  People. 

On  Nov.  8,  1898,  a  general  election  of  State  and 
county  officers  was  held  throughout  California.  At 
that  election  Thomas  B.  McFarland  and  W^ni.  C.  Van 
Fleet,  two  of  the  corrupt  Judges  of  the  Supreme  Court, 
were  the  candidates  of  the  Republican  party  for  re-elec- 
tion for  Associate  Justices  of  the  Supreme  Court.  At 
the  same  election  Wm.  F.  Fitzgerald,  one  of  the  cor- 
rupt Judges  of  the  Supreme  Court,  who  had  joined  in 
the  crime  of  the  disbarment — his  term  as  Attorney- 
General  of  the  State  being  about  to  expire — was  the 
candidate  of  the  same  political  party  for  -City  and 
County  Attorney  of  San  Francisco.     It  was  a  time  of  a 


413 

great  wave  of  strength  for  the  Republican  party 
throughout  the  State  of  California. 

At  this  election  I  again  offered  myself  to  the  electors 
of  San  Francisco  as  an  independent  candidate  forjudge 
of  the  Superior  Court,  and  I  again  issued  a  short  circu- 
lar to  the  electors,  entitling  it,  "An  Appeal  to  the 
People."  The  circular  gave  a  brief  statement  of  the 
crime  of  the  disbarment  and  of  the  criminal  use  of  the 
Supreme  Court  of  the  State  in  upholding  the  Justice 
Ralph  C.  Harrison  in  his  villainy  and  in  denying  jus- 
tice to  his  betrayed  victims,  Mrs.  Levinson  and  her 
daughters,  and  stated  also  that  all  that  criminal  use  of 
the  Supreme  Court  of  the  State  was  the  work  of  The 
Southern  Pacific  Company.  In  the  circular  I  not  only 
announced  my  own  candidacy,  but  appealed  also  to  the 
electors  to  prevent  the  re-election  of  Thos.  B.  McFar- 
land  and  Wm.  C.  Van  Fleet  as  Justices  of  the  Supreme 
Court  and  the  election  of  Wm.  F.  Fitzgerald  as  City^ 
and  County  Attorney  of  San  Francisco.  For  some 
weeks  prior  to  the  election  that  circular  was,  by  the 
voluntary  assistance  of  many  individual  citizens,  dis- 
tributed extensively  throughout  San  Francisco. 

As  a  result  of  that  ''Appeal  to  the  People"  I  was 
given  by  the  electors  of  San  Francisco,  according  to  the 
official  returns,  9,887  votes  for  Judge  of  the  Superior 
Court,  a  number  which,  however,  was  insufficient  to 
elect.  And  although  the  Republican  candidates  gen- 
erally were  elected  by  very  large  majorities,  both  in 
San  Francisco  and  throughout  the  State,  yet  in  San 
Francisco,  where  my  "Appeal  to  the  People"  was  cir- 
culated, Wm.  F.  Fitzgerald  was  defeated,  and  the  Jus- 
tices McFarland  and  Van  Fleet  each  received  a  far 
smaller  vote    than  either    of  the  opposing    candidates. 


414 

Taking  the  State  as  a  whole,  the  re-election  of  Justice 
Van  Fleet  was  defeated.  In  San  Francisco  the  vote  for 
Justices  of  the  Supreme  Court  was  as  follows: 

Conley(D.)  25,598. 

Van  Dyke  (D.)      23,762. 

McFarland  (R.)    21,715. 

Van  Fleet  (R.)       20,436. 

And  in  the  State  as  a  whole,  as  follows: 
Van  Dyke  (D.)    117,287. 
McFarland  (R.)  113,118. 
Conley  (D.)  109,742. 

Van  Fleet  (R.)     108,212. 

If  my  circular  had  been  laid  before  the  people 
throughout  the  whole  State,  the  re-election  of  McFar- 
land also   would  have  been  defeated. 


4.     A    Suit   for   a    flandamus  in  the  United    States  Circuit 

Court. 

In  the  Act  of  Congress  quoted  on  page  399  above,  it 
is  provided  that  there  shall  be  liability  "  to  the  party 
injured  in  an  action  at  law,  suit  in  equity,  or  other 
proper  proceeding  for  redress." 

That  Act  was  passed  in  1870,  and  the  14th  amend- 
ment of  the  Constitution  was  adopted  in  1868,  and, 
upon  a  case  which  arose  in  1867,  '^^^  Supreme  Court  of 
the  United  States  had  just  decided  that  a  ''^proper  pro- 
ceedings for  redress"  for  an  attorney  wrongfully  dis- 
barred, is  a  writ  of  mandamus  to  compel  the  restoration 
of  his  rights.* 

*  Ex  parte  Bradley  7  Wall  364. 


415 

I  therefore  commenced  on  August  i,  1898,  in  the 
United  States  Circuit  Court  at  San  Francisco,  against 
the  seven  Justices  of  the  Supreme  Court  of  California, 
namely,  the  Chief  Justice,  Wm.  H.  Beatty,  and  the 
Associate  Justices,  Charles  H.  Garoutte,  Ralph  C.  Har- 
rison, Frederick  W.  Henshaw,  Thos.  B.  McFarland, 
Jackson  Temple  and  Wm.  C.  Van  Fleet — a  suit  for 
a  writ  of  mandamus  to  compel  them  to  set  aside  the 
disbarment  and  to  restore  to  me  the  right  to  prac- 
tice my  profession.  In  the  complaint  I  stated  in  detail 
the  whole  series  of  outrages  against  my  clients,  Mrs. 
Levinson  and  her  daughters,  and  myself,  which  are 
stated  in  the  preceding  pages  up  to  and  including  the 
final  false  decision  for  the  two  Newmans,  and  stated  also 
the  part  taken  by  The  Southern  Pacific  Company  in 
those  outrages, precisely  as  stated  in  this  paper.  Upon  be- 
ing brought  into  Court,  the  seven  Justices  thus  sued,  no 
longer  challenged  the  facts.  They  admitted  the  truth 
of  all  that  was  alleged  against  them — they  admitted  all 
their  corruption  and  wickedness,  which  was  stated  in 
the  complaint  against  them  just  as  it  is  here — they 
admitted  their  own  characters  as  false,  corrupt  and 
wicked  judges  and  as  the  corrupt  and  wicked  agents  of 
The  Southern  Pacific  Company — admitted  it  all  to  be 
true,  and  rested  their  defense  solely  upon  a  pretense 
that  the  United  States  Circuit  Court  was  powerless  to 
give  relief,  that  is,  upon  a  demurrer  setting  up  that 
pretense.  It  was,  of  course,  no  longer  of  any  use  for 
them  to  avoid  being  represented  by  The  Southern 
Pacific  Company's  attorneys;  and  the  attorneys  who 
appeared  for  them  were  John  Garber  and  Robert  Y. 
Hayne.  Upon  that  demurrer  the  case  was  submitted 
for  decision  on  Nov.  21,  1898,  before  Wm.   W.  Morrow, 


4i6 

the  United  States  Circuit  Judge  for  the  Northern  Dis- 
trict of  California.  The  case  as  thus  submitted  to 
Judge  Morrow  was  held  by  him  as  a  case  under  consid- 
eration, until  April  lo,  1899 — four  months  and  twenty 
days — a  period  which  covered  the  biennial  session  of 
the  Legislature  of  California,  which  was  held  in  Janu- 
ary, February,  and  a  part  of  March,  1899.  On  April 
10,  1899,  Judge  Morrow  caused  an  order  of  the  Circuit 
Court  to  be  entered  sustaining  the  demurrer  and  dis- 
missing the  case.  Neither  in  the  order  nor  anywhere 
in  the  records  or  files  of  the  Court  has  any  reason  for 
the  decision  been  stated. 


The  case  known  as  Railroad  Tax  Cases  (13  Fed. 
722),  several  times  cited  in  preceding  pages,  in  which 
at  the  suit  of  The  Southern  Pacific  Railroad  Company 
all  that  part  of  the  Constitution  of  California  which 
provided  for  the  taxation  of  railroad  property  was  de- 
clared void  and  set  aside — a  case  in  which,  to  protect 
the  assumed  rights  of  that  corporation,  the  deliberately 
expressed  will  of  the  people  of  California  was  over- 
thrown— was  decided  in  precisely  three  weeks  and  six 
days  from  the  day  when  it  was  submitted  to  the  Court; 
and  in  giving  the  decision  two  Federal  Judges  (Justice 
Field  and  Judge  Sawyer)  each  filed  an  elaborate  written 
opinion.  Now,  mark  the  contrast.  My  case,  the  case 
of  an  American  citizen  seeking  relief  from  the  wrongs 
committed,  through  corrupt  ofi&cials  of  the  State,  by  an 
organization  of  corporations  of  which  The  Southern 
Pacific  Railroad  Company  is  a  part — seeking  relief 
upon  the  very  same  guaranties  of  the  Constitution  of 
the  United  States — seeking  relief  from  the  destruction 
of  my  property  and  from  the  deprivation  of  my  civil 
rights — was  not  decided  until  four  months  and  twenty 


417 

days  after  it  was  submitted  for  decision — was  not  de- 
cided until  the  State  Legislature  had  convened,  held  its 
session  and  adjourned,  thus  keeping  me  from  apply- 
ing to  the  Legislature  for  relief — and  then  relief  was 
denied,  and  nowhere  in  the  records  or  files  of  the  Court 
is  there  any  statement  of  the  reason  of  the  decision. 


m  flPPEflL  TO  THE  PEOPLE 


To  the  American  People;  and  Particularly  to 
the  People  of  the  State  of  California. 


The  Supreme  Court  of  the  State  of  California  in  the  Posses- 
sion of  Criminals. 

In  the  preceding  pages  I  have  shown — and  have 
given  the  proof — that  for  almost  five  years  (at  the  least) 
the  Supreme  Court  of  the  State  of  California  has  been 
— that  it  now  is — in  the  possession  of  criminals;  that 
during  all  that  time  the  Supreme  Court  of  .this  State 
has  been  used — that  it  is  still  being  used — as  an  instru- 
ment of  crime. 

The  disbarment  (described  on  pages  107-289  above) 
is  a  great  and  most  foul  crime.  The  false  report  of  the 
disbarment  which  has  been  placed  in  the  California  Re- 
ports (described  on  pages  281-287  above)  is  a  crime. 
The  disposition  of  every  one  of  the  three  appeals,  men- 
tioned on  pages  289-295  and  pages  305-391  above,  is  a 
crime.  The  disbarment,  the  false  report  of  it  in  the 
California  Reports,  and  the  disposition  of  those  three 
appeals — not  only  has  every  one  of  those  acts  been  in 
itself  a  crime,  but  they  are  all  parts  of  one  great  crime. 
Of  all  this  the  full  and  abundant  proof  is  given  in  the 
preceding  pages.  * 

It  must  not  be  supposed  that  the  particular   crimes 


419 

shown  in  the  preceding  pages  are  the  only  crimes 
which  within  the  last  five  years  have  been  committed,  or 
that  none  other  are  being  committed,  by  the  authors  of 
the  particular  crimes  here  shown  or  by  the  instrumental- 
ity of  the  Supreme  Court  of  this  State.  I  have  proved 
these  crimes.  By  means  of  the  particular  crimes  here 
shown,  I  have  been  subjected  to  so  prolonged  and  so 
extreme  suffering,  that  I  have  been  driven  by  the  tor- 
ture to  collect  and  show  the  proof  that  they  are  crimes. 


The  Criminals. 

Of  the  individuals  who,  as  tools  of  the  gigantic  com- 
bination of  corporations  called  The  Southern  Pacific 
Company,  have  committed  and  are  keeping  up  the  par- 
ticular crimes  pointed  out  above,  six  are  still  holding 
office  as  Justices  of  the  Supreme  Court  of  this  State, 
being  six  of  the  seven  Justices  constituting  the  Court. 
These  six,  and  their  terms  of  office,  are  as  follows: 

The  Chief  Justice: 

Wm.  H.    Beatty    (for  a  term  ending  in  January, 

The  Associate  Justices : 

Charles  H.  Garoutte  (for  a  term  ending  in  Janu- 
uary,  190^). 

Ralph  C.  Harrison    (for   a  term  ending  in  Janu- 
ary, 190D. 

Frederick  W.  Henshaw  (for  a  term  ending  in  Jan- 
uary, 1907). 


420 

Jackson  Temple  (for  a  term  ending  in  January, 
1907). 

Thos.  B.  McFarland  (for  a  term  ending  in  Janu- 
ary, 191 1. 

Another,  John  J.  De  Haven,  was  in  June,  1897, 
appointed  the  District  Judge  of  the  United  States  for 
the  Northern  District  of  California  {i.  e.^  at  San  Frau- 
cisco),  an  office  which  he  still  holds. 

The  two  others,  namely,  Wm.  F.  Fitzgerald  and 
Wm.  C.  Van  Fleet,  were,  on  November  8,  1898,  rele- 
gated to  private  life  by  the  votes  of  the  people. 

But  in  March,  1898,  The  Southern  Pacific  Company, 
through  their  evil  agents  the  Justices  of  the  Supreme 
Court  of  California,  set  aside  the  primary  election  law 
of  the  State.  They  then,  by  means  of  the  party 
"machine"  and  the  party  "  bosses,'^  obtained  control  of 
the  nominating  conventions  of  the  Republican  party, 
and  by  so  doing  dictated  the  choice  of  the  Republican 
candidate  for  Governor  of  the  State,  and  their  candidate 
was  elected.  And  so  in  July,  1899,  ^^^^  Governor 
appointed  Wm.  F.  Fitzgerald  a  Judge  of  the  Superior 
Court  of  Los  Angeles  County,  and  Wm.  C.  Van  Fleet 
to  the  office  of  Code  Commissioner  of  the  State.  The 
Southern  Pacific  Company,  thwarting  the  will  of  the 
people  (as  they  are  accustomed  to  do),  have  thus 
restored  their  evil  agents  to  high  offices  in  the  Govern- 
ment of  the  State. 

In  the  crimes  committed  in  the  Newman  &  Levinson 
case  and  shown  in  the  preceding  pages,  the  central 
figure  of  the  criminals  is  Ralph  C.  Harrison,  evil  agent 
of  The  Southern  Pacific  Company,  and  holding  from 
them    an    assignment    as    Associate    Justice    of    the 


421 

Supreme  Court  of  the  State  of  California.  In 
his  conduct  toward  Mrs.  Fanny  Levinson  and 
her  daughters  (shown  on  pages  16-59  and  on  pages 
97-106  above)  he  proved  himself  the  vilest  and 
blackest  of  scoundrels.  The  efforts  to  whitewash 
him  which  have  been  made  by  his  masters  The  South- 
ern Pacific  Company  and  their  evil  agents  his  associates, 
in  The  Record-Union  and  in  the  act  disbarring  the 
attorney  of  his  victims  and  in  the  false  and  wicked 
report  of  that  disbarment  which  he  and  they  placed  in 
the  California  Reports  and  the  efforts  toward  the  same 
end  which,  after  denying  a  hearing  of  the  case,  have 
been  so  foully  and  wickedly  made  in  the  final  decision 
for  the  two  Newmans, — all  those  efforts  confess  his 
guilt,  confixrm  the  proof  of  his  unspeakable  villainy. 
As  pointed  out  on  pages  253-255  above,  his  masters  and 
their  tools,  who  are  his  associates,  have  been  unable  to 
face  the  facts  and  have  been  driven  from  the  field.  The 
result  of  all  those  efforts  goes  to  prove  the  truth  of 
Carlyle's  declaration,  quoted  on  page  255  above. 

In  addition  to  the  unspeakable  villainy  committed  by 
him  upon  Mrs.  Levinson  and  her  daughters  up  to  the 
time  when  their  cause  was  taken  to  the  Supreme  Court, 
there  is  his  foul  agency  in  the  crime  of  the  disbarment' 
and  in  the  denial  of  a  hearing  of  each  of  their  three 
appeals  and  in  the  false,  corrupt  and  malevolent  decis- 
ions made  against  them,  his  wronged  and  betrayed 
clients,  the  three  defenseless  women  whose  money  he 
received  and  appropriated  as  his  fee  for  protecting  them. 
It  is  of  course  no  answer  to  say  that  he  did  not  phys- 
ically and  literally  subscribe  his  name  to  the  disbar- 
ment or  to  any  of  those  wicked  decisions.  He  plotted 
all  that  series  of  wicked  acts,  and  from  the  time  he  con- 


422 

trived  the  vile  plot  lie  has  pulled  the  wires.  All  those 
crimes  have  been  committed  in  his  behalf,  and  the  Civil 
Code  of  California  (expressing  only  a  plain  truth)  de- 
clares that  (Sec.  3519):  ''He  who  can  and  does  not  for- 
bid that  which  is  done  in  his  behalf  is  deemed  to  have 
bidden  it." 

But  although  Ralph  C.  Harrison  is  the  central  figure, 
he  is  not  the  chief  criminal.  Fully  his  equals  in  vil- 
lainy and  crime  are  the  persons  who,  as  the  corrupt 
judges  of  the  Supreme  Court  of  this  State,  and  at  the 
instigation  and  with  the  backing  of  their  masters,  The 
Southern  Pacific  Company,  have  committed  and  are 
keeping  up  the  particular  crimes  shown  in  the  preced- 
ing pages. 

The  worst,  the  most  detestable,  and  far  the  most  dan- 
gerous criminal  that  exists  on  the  earth  is  a  false,  lying, 
corrupt,  wicked  judge  of  a  higher  court.  .  And  such 
criminals  are  Wm.  H.  Beatty,  Chas.  H.  Garoutte,  Ralph 
C.  Harrison,  Frederick  W.  Henshaw,  Thos.  B.  McFar- 
land,  and  Jackson  Temple,  six  of  the  seven  Justices  of 
the  Supreme  Court  of  the  State  of  California.  They 
are  criminals.  They  have  the  minds  and  feelings  of 
criminals.  There  exists  nowhere,  not  in  any  jail  or 
penitentiary,  any  wretch  with  a  mind  or  feelings  more 
criminal,  malevolent  or  wricked.  They  are  hardened, 
deliberate  and  persistent  criminals — hardened,  deliber- 
ate and  persistent  traitors  to  the  most  sacred  of  public 
trusts.  They  are  enemies  of  mankind.  Of  all  this  the 
full  and  abundant  proof  is  given  in  the  preceding  pages. 

It  is  by  means  of  such  tools  that  The  Southern  Pa- 
cific Company  are  in  possession  of  the  Supreme  Court 
of  California  and  of  the  government  of  the  State. 


423 


e  State  of  California  an  Appanage  of  The  Southern  Pacific 
Company. 


Is  the  State  of  California  free  ?  Apply  the  test  stated 
by  Judge  Caldwell  and  quoted  on  page  227  above:  "Re- 
duced to  its  last  analysis,  the  intelligent  and  impartial 
administration  of  justice  is  all  there  is  of  free  govern- 
ment." Tried  by  any  such  test  the  State  of  California 
is  not  free.  It  is  an  arbitrary  despotism  dominated  by 
The  Southern  Pacific  Company. 

Is  the  State  of  California  in  truth  a  part  of  the 
United  States  ?  Apply  the  test.  The  Constitution  of 
the  United  States  declares  that  '^No  State  shall  *  *  * 
deprive  any  person  of  life,  liberty  or  property  withgut 
due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws.''  It  also 
declares  that  its  purpose  is  ^^to  *  *  establish  justice 
*  *  and  secure  the  blessings  of  liberty."  It  also  de- 
clares that  "This  Constitution  *  *  *  shall  -be  the 
supreme  law  of  the  land,  and  the  judges  in  every  State 
shall  be  bound  thereby."  *  *  But  for  almost  five 
years  (at  the  least)  The  Southern  Pacific  Company, 
through  their  possession  of  the  Supreme  Court  of  the 
State,  have  made  the  State  of  California  nullify  and  set 
at  naught  all  those  provisions  of  the  Constitution.  The 
State  of  California  is  not  then  in  truth  a  part  of  the 
United  States.  It  is  in  truth  only  a  dependency,  an 
appanage  of  The  Southern  Pacific  Company  and  their 
allies. 

The  chief  function  of  the  United  States  Government 
in  the  State  of  California  is  that  of  a  protectorate  of  the 
corrupt  and  irresponsible  oligarchy  called  The  Southern 
Pacific  Company,  to  keep  the  people  of  the  State  under 
for  the  benefit  of  that  oligarchy.      Instances  in  proof  of 


424 

this  fact  are  mentioned  in  preceding  pages.  As  already 
stated  (see  pp.  64-75  above),  from  October,  1895,  to 
May,  1899 — three  years  and  seven  months,  and^  until 
its  use  for  such  a  purpose  was  no  longer  of  value  — 
the  United  States  Circuit  Court  at  San  Francisco  was 
used  to  prevent  the  Board  of  Railroad  Commissioners 
of  the  State  from  reducing  the  freight  charges  on  The 
Southern  Pacific  Company's  railroads,  and  the  people 
of  the  State  were  made  to  contribute  a  false  decision  of 
their  Supreme  Court  and  the  services  of  their  Attorney- 
General  and  the  sum  of  $20,000  in  addition,  to  assist  in 
fastening  upon  themselves  the  shackles  and  chains. 
The  act  by  which  it  was  done  was  called  an  injunction 
suit ;  but  the  so-called  suit  was  not  tried,  nor  was  any 
trial  intended.  It  was  a  suit  only  in  form,  only  by 
pretense,  the  attorneys  on  both  sides  being  owned  by 
The  Southern  Pacific  Company.  That  so-called  in- 
junction suit  was  in  truth  only  an  administrative  act  of 
the  United  States  Government,  by  which  the  State  of 
California  was  held  under  for  the  benefit  of  The 
Southern   Pacific    Company. 

In  rendering  judgments  in  favor  of  the  great  corpo- 
rations, or  in  favor  of  Chinese  aliens  in  cases  where, 
because  of  their  furnishing  cheap  labor,  they  have  been 
backed  by  the  deep  and  openly  avowed  sympathies  of 
the  great  corporations, — in  rendering  such  judgments 
the  United  States  Circuit  Court  at  San  Francisco  has 
been  swift  and  liberal  in  enforcing  the  guaranties  of  the 
Constitution  of  the  United  States  that  "  no  State  shall 
*  *  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws."  In 
what  other  case  has   it  done  anything  of  the   kind  ? 


425 

And,  in  particular,  when  did  that  Court  ever  uphold 
that  guaranty  in  favor  of  a  single  American  citizen  and 
against  an  act  of  wrong  and  oppression  instigated  or 
backed  by  any  of  the  great  private  corporations  ?  How 
the  American  citizen  is  treated  in  such  a  case  may  be 
seen  on  pages  399-412  and  414-417  above.  But  in 
favor  of  the  great  corporations  and  of  alien  Chinese 
laborers,  the  Court  has  given  readily  all  that  is  asked, 
and  has  said  {Parrotfs  Case^  6  Sawyer) : 

♦  ♦  a  /J^Q  deprive  them  [the  Chinese]  of  the 
right  to  labor,  is  to  consign  them  to  starvation. 
The  right  to  labor  is,  of  all  others,  after  the  right 
to  live,  the  fundamental,  inalienable  right  of  man, 
wherever  he  may  be  permitted  to  be,  of  which  he 
can  not  be  deprived,  either  under  the  guise  of  law 
or  otherwise,  except  by  usurpation  and  force." 

And  again  (in  the  same  case): 

*'  To  deprive  a  man  of  the  right  to  select  and 
follow  any  lawful  occupation,  that  is,  to  labor  or 
contract  to  labor,  if  he  so  desires  and  can  find  em- 
ployment—  is  to  deprive  him  of  both  liberty  and 
property,  within  the  meaning  of  the  14th  Amend- 
ment and  Act  of  Congress." 

Slavery  in  the  State  of  California. 

In  the  San  Francisco  newspapers  of  April  8,  1898, 
one  of  the  professors  of  the  University  of  California 
was  reported  to  have  delivered,  the  day  before,  a  lecture 
on  "  Liberty  and  Authority,"  in  which,  among  other 
things,  he  said : 

"There  is  slavery  in  America  to-day  which  is  worse  than 
that  of  the  Africans  of  the  South  in  the  days  before  the  Civil 
War.  These  persons  [white  American  citizens]  must  do 
what  they  are  told  or  die  a  death  of  lingering  horror." 


426 

That  such  a  condition  actually  exists  in  the  State  of 
California  is  proved  and  fully  demonstrated  in  the  fore- 
going pages.  In  the  disbarment,  falsely  and  wickedly 
inflicted,  and  falsely  and  wickedly  reported,  and  falsely 
and  wickedly  kept  up,  the  only  element  of  slavery  lack- 
ing is  the  consent  of  the  victim.  This  is  self-evident, 
and  it  has  been  declared  by  the  Supreme  Court  of  the 
United  States  in  giving  judgment  in  favor  of  a  Chinese 
alien  laborer,  in  the  case  of  Yick  Wo  v.  Hopkins^  ii8 
U.  S.  (see  the  language  quoted  on  p.  220  above.) 


Innocent,  Defenseless  Women  Made  Outlaws  by  the  State  of 

California. 

The  cause  of  Mrs.  Fanny  Levinson  and  her  daugh- 
ters Julia  and  Ada  is  stated  on  pages  16-59  and  on 
pages  97-106  above.  The  facts  are  stated  fully, 
clearly  and  without  the  least  contradictory  evidence,  in 
the  record  of  the  case  which,  after  being  printed  at  their 
expense,  was  filed  by  them  in  the  Supreme  Court  upon 
the  appeal  stated  on  page  55  of  this  paper.  It  is  a 
plain,  simple,  just  case.  The  estate  earned  by  their 
natural  and  actual  protector,  the  late  John  Levinson, 
and  which  at  his  death  was  left  by  him  for  their  sup- 
port, has  been  withheld  from  them  fraudulently  and 
forcibly  by  his  surviving  copartners,  Wm.  J.  Newman 
and  Benjamin  Newman.  At  great  sacrifices  they  have 
seasonably  and  properly  taken  their  cause  to  the 
Supreme  Court  of  the  State  of  California  and  asked  for 
redress.  By  the  means  shown  in  detail  in  the  preced- 
ing pages;  The  Southern  Pacific  Company  have  caused 
these  three  defenseless  women  to  be  denied  the  right  to 


I 


427 

an  attorney,  to  be  denied  a  hearing,  to  be  denied  jus- 
tice, to  have  their  cause  covered  with  infamous,  scoun- 
drelly lies, — and  all  by  the .  instrumentality  of  the 
Supreme  Court  of  the  State  of  California.  That  evil 
and  terrible  organization  has  thus  caused  the  widow 
and  her  children,  innocent  and  defenseless  persons,  to 
be  made  actual  outlaws  by  the  State  of  California. 

To  overcome  such  an  outrage,  ought  not  the  whole 
State  to  be  aroused  ? 


Compared  With  the  Dreyfus  Case. 

On  pages  4-5  above  the  case  here  is  compared  with 
the  Dreyfus  case.  Now,  let  that  comparison  be  carried 
further. 

Take  first  the  Dreyfus  case.  It  is  probable  that 
there  an  offense  had  been  committed,  that  some  one  in 
the  army  had  been  selling  military  secrets. 

Take  now  the  disbarment  of  the  attorney  in  the  case 
here.  That  disbarment  has  been  inflicted  absolutely 
without  cause^  and  with  the  full  knowledge  by  those  in- 
flicting it  that  it  was  being  inflicted  absolutely  without 
cause.  This  is  shown  fully  and  demonstrated  step  by 
step  on  pages  107-289  above.  Any  intelligent  per- 
son who  can  read,  by  following  what  is  there  pointed 
out,  may  see  for  himself  that  the  disbarment  was  in^ 
flicted  absolutely  without  cause — that  the  brief  referred 
to  in  it  was  in  every  respect  a  proper  and  just  and  mer- 
itorious treatise  upon  the  case — that  the  disbarment  is 
in  the  full  sense  of  the  word  a  crime. 

Compare  the  punishments  inflicted.  This  I  leave  to 
the  reader's  consideration. 


428 

The  Dreyfus  case  was  tried  in  secret.  The  victim 
was  not  allowed  to  know  upon  what  evidence  he  was 
being  condemned.  In  the  case  here  the  judgment  of 
disbarment  was  made  in  precisely  the  same  way.  This 
has  been  pointed  out  in  detail  and  the  proof  given. 

The  Dreyfus  conviction  was  made  according  to  the 
forms  of  law.  In  the  case  here  the  law  and  the  Consti- 
tution and  natural  justice,  and  the  plain  truth  have  all 
been,  in  the  judgment  of  disbarment,  openly  and  inso- 
lently violated  and  trampled  down.  This  has  all  been 
shown  in  detail  on  pages  107-289  above. 

Take  now  the  disposition  which  has  been  made  by 
the  Supreme  Court  of  California  of  the  cause  of  Mrs. 
Fanny  Levinson  and  her  daughters. 

Dreyfus  was  allowed  the  help  of  an  attorney.  Here 
the  attorney  of  Mrs.  Levinson  and  her  daughters  was 
struck  down;  they  were  wickedly  deprived  of  the  right 
to  an  attorney. 

The  cause  of  Mrs.  Levinson  and  her  daughters — 
every  one  of  their  three  appeals — has  been  decided 
against  them  in  secret,  without  a  hearing.  In  this  re- 
spect their  case  resembles  that  of  Dreyfus.  But  (as 
shown  on  pages  107-289  and  305-391  above)  the  judg- 
ments made  by  the  Supreme  Court  of  the  State  of  Cal- 
fornia  against  Mrs.  Fanny  Levinson  and  her  daughters 
has  been  based  upon  the  most  infamous  and  outrageous 
a:nd  malevolent  lies  of  those  pretending  to  act  as  the 
Judges. 

I  therefore  say  that  the  outrages  and  crimes  which 
the  Supreme  Court  of  the  State  of  California  has  been 
made  to  commit  in  the  case  here,  far  exceed  anything 
that  appears  in  the  Dreyfus  case. 


429 
No  Law  or  Right  in  the  State  of  California. 

Sir  Edward  Coke,  in  his  Institutes  (published  in  1629) 
says  of  the  word  "right"  as  used  in  Magna  Charta  that 
''right  is  taken  here  for  law,"  and  he  then  says  (p.  50): 
*'It  is  called  right  because  it  is  the  best  birthright  the 
subject  hath,  for  thereby  his  goods,  lands,  wife,  chil- 
dren, his  body,  life,  honor,  and  estimation  are  protected 
from  injury  and  wrong.''  In  the  passage  quoted  on 
page  227  above  Henry  Clay  Caldwell  has  lately  affirmed, 
although  in  a  different  form,  the  same  plain  truth. 

This  is  a  truth  which  should  be  felt  by  every  man 
and  woman.  If  you  have  property,  it  may  be  taken 
from  you,  upon  a  wrongful  claim,  by  false  judges.  And 
you  may  be  deprived  of  your  liberty  or  your  life  in  the 
same  way.  If  you  leave  property  for  a  wife  or  child  it 
may  be  taken  by  robbery,  and  the  robbery  upheld,  as 
the  robbery  of  Mrs.  Fanny  Levinson  and  her  daughters 
has  been  upheld,  by  false  judges.  If  you  are  poor,  do 
3^ou  not  wish  to  be  at  least  free  ?  And  how  can  you 
endure  to  contemplate  the  fate  which  your  children 
have  before  them,  when  the  Supreme  Court  of  the  State 
is  in  the  possession  of  criminals,  when  they  use  the 
court  for  crime  and  are  allowed  so  to  do  ? 

Let  now  any  intelligent  person  examine  for  himself 
the  facts  stated,  the  proof  given,  in  the  preceding  pages 
of  this  paper.  So  long  as  the  disbarment  (described  on 
pages  107-289  above)  is  held  in  force,  so  long  as  the 
decision  for  the  two  Newmans  (described  on  pages  305- 
391  above)  is  persisted  in — so  long  as  such  acts  are 
done  and  kept  up  by  the  Supreme  Court  of  the  State  of 
California,  there  is  in  fact  no  law  or  right  in  the  State. 
That  which  is  called  law,  that  which  has  been  written 
down  in  constitutions  or  in  statutes — is  only  so  much 


430 

material  witli  which  to  juggle,  and  to  be  applied  or 
withheld,  affirmed  or  denied,  only  at  the  arbitrary  dic- 
tate of  criminals.  , 


The  Supreme  Court  of  California  A  floral  Calamity. 

On  page  275  above,  and  again  on  page  318,  it  is 
properly  pointed  out  that  "The  Southern  Pacific  Com- 
pany have  no  lawful  or  just  right  to  be  the  Supreme 
Court  of  California." 

Only  a  few  years  ago  The  American  Law  Review  pro- 
nounced the  Supreme  Court  of  the  State  of  California  to 
be  ''not  a  benefaction  but  a  calamity"  (see  p.  63  above). 
At  that  time  the  Supreme  Court  of  California  was,  as  it 
still  is,  in  fact,  merely  a  bureau  of  The  Southern  Pacific 
Company.  I  wish  now  to  call  attention  to  the  fact  that 
in  their  administration  of  the  Supreme  Court  of  Califor- 
nia, The  Southern  Pacific  Company  are  maintaining 
in  the  State  a  great  and  continual  moral  calamity. 

The  fact  that,  as  above  shown,  six  of  the  persons 
who  are  now  Justices  of  the  Supreme  Court  of  Califor- 
nia are  unspeakably  false  and  corrupt  Judges,  and, 
that  by  means  of  them,  the  Court  is  possessed  and 
used  for  evil  purposes  by  The  Southern  Pacific  Com- 
pany— these  facts  are  widely  known  in  California  and 
particularly  in  San  Francisco.  In  San  Francisco  these 
facts  are  the  common  talk.  The  fact  that  in  the  Su- 
preme Court  of  California  the  truth,  the  Constitution 
and  the  law  are  of  no  protection,  is  also  widely  known. 
The  foul  and  extreme  outrages  and  crimes  perpetrated 
and  kept  up  upon  Mrs.  Levinson  and  her  daughters 
and  upon  myself  for  attempting  properly  to  present 
their  case  to  the  Court — are  widely  known,  and  partic- 


431 

ularly  in  San  Francisco.  In  San  Francisco  even  boys 
talk  of  these  things  and  cite  them  as  proof  of  the  fool- 
ishness of  being  honest. 

Is  not  snch  a  condition  of  things  necessarily  a  great 
and  continuing  moral  calamity  ? 

Impeachment  an  Inadequate  Remedy. 

Upon  this  subject  Thomas  Jefferson  has  left  his  tes- 
timony as  follows: 

In  the  Autobiography: 

'*We  have  gone  even  beyond  the  English  cus- 
tom, by  requiring  a  vote  of  two-thirds,  in  one  of 
the  Houses,  for  removing  a  Judge;  a  vote  so  im- 
possible when  au}^  defense  is  made,  before  men  of 
ordinary  prejudices  and  passions,  that  our  Judges 
are  effectively  independent  of  the  nation.  This 
,  ought  not  to  be  *  *  *  I  deem  it  indispensa- 
ble to  the  continuance  of  this  government,  that 
they  should  be  submitted  to  some  practical  and 
impartial  control." 

In  a  letter  to  Edward  Livingston   (March  25,  1825): 

"  This  member  of  the  government  [the  judicial] 
was  at  first  considered  to  be  the  most  harmless  and 
helpless  of  all  its  organs.  But  it  has  proved  that 
the  power  of  declaring  what  the  law  is,  ad  libitum^ 
by  sapping  and  mining,  slyly  and  without  alarm, 
the  foundations  of  the  constitution,,  can  do  what 
open  force  would  not  dare  to  attempt." 

In  a  letter  to  Thomas  Richie  (Dec.  25,  1820): 

*  *  * 'Having  found  from  experience  that  im- 
peachment is  an  inpracticable  thing,  a  mere  scare- 
crow, they  consider  themselves  secure  for  life ; 
they  skulk  from  responsibility  to  public  opinion." 


432 

In  a  letter  to  Judge  Roane  (Sept.  6,  1819)  : 

*  *  "  For  experience  has  already  shown  that 
the  impeachment  it  [the  Constitution]  has  pro- 
vided is  not  even  a  scare-crow  *  *  *  j^  should 
be  remembered,  as  an  axiom  of  eternal  truth  in 
politics,  that  whatever  power  in  any  government 
is  independent,  is  absolute  also ;  in  theory  only, 
at  first,  while  the  spirit  of  the  people  is  up,  but  in 
practice,  as  fast  as  that  relaxes.  Independence 
can  be  trusted  nowhere  but  with  the  people  in 
mass.  They  are  inherently  independent  of  all 
but  moral  law.'^ 

And  in  a  letter  to  Mr.  Jarvis  (Sept.  28,  1820)  : 

*  *  "You  seem  to  consider  the  judges  as  the 
ultimate  arbiters  of  all  constitutional  questions  ;  a 
very  dangerous  doctrine  indeed,  and  one  which 
would  place  us  under  the  despotism  of  an  oligarchy. 
*  *  *  I  know  no  safe  depository  of  the  ulti- 
mate power  of  the  society  but  the  people  them- 
selves ;  and  if  we  think  them  not  enlightened 
enough  to  exercise  their  control  with  a  wholesome 
discretion,  the  remedy  is  not  to  take  it  from  them, 
but  to  inform  their  discretion  by  education." 

It  must  be  borne  in  mind,  however,  that  in  Jefferson's 
time  the  population  of  the  nation  consisted  mainly  of 
prosperous  farmers  and  proprietors  of  plantations  and 
well-to-do  merchants,  and  that  any  man  who  possessed 
health  and  strength  could,  whenever  he  wished,  obtain 
a  rich  farm  from  the  public  domain.  Now,  the  public 
domain  has  long  been  exhausted.  All  available  lands 
are  held  by  private  owners.  The  relations  of  the  people 
have  become  extremely  complicated.  The  opportunities 
which  the  individual  then  had  to  be  independent  are 
now    closed    to    him.     No    such   organization    as   The 


433 

Southern  Pacific  Company  then  existed  or  had  even 
been  dreamed  of.  If  impeachment  was  then  an  imprac- 
ticable remedy  against  false  and  corrupt  judges,  think 
how  much  more  impracticable  it  is  now. 


The  Only    Remedy    Is    With    the  People   Themselves.     The 
Lessons  of  English  History. 

On  pages  223-229  above,  reference  is  made  to  the 
experience  of  the  people  of  England  with  the  arbitrary 
and  corrupt  judges  of  the  Tudors  and  the  Stuarts. 
There  the  remedy  came  from  the  people  themselves. 
It  was  in  obedience  to  the  demands  of  the  people  that 
Empson  and  Dudley  were  punished.  The  arbitrary  and 
corrupt  courts  of  the  Stuarts  were  shaken  off  only  by 
means  of  two  revolutions.  In  the  one  revolution 
Charles  the  First  was  put  to  death,  and  Oliver  Crom- 
well placed  at  the  head  of  the  Government.  In  the 
other  revolution,  that  of  1688,  the  House  of  Stuart  was 
permanently  expelled.  And  from  that  day  to  this  the 
character  of  English  judges  has  been  high  and  pure. 

And  in  the  United  States,  in  the  State  of  California, 
the  only  remedy  for  the  oppression  of  arbitrary,  corrupt 
and  wicked  Judges  is  with  the  people  themselves.  And 
this  truth  has  an  especial  emphasis  where,  as  in  the 
State  of  California,  so  powerful  and  terrible  a  conspir- 
acy as  the  gigantic  organization  of  corporations  called 
The  Southern  Pacific  Company  are  in  possession  of  the 
Supreme  Court  of  the  State  and,  by  means  of  it,  use  the 
power  of  the  whole  people  for  the  destruction  of  individ- 
ual after  individual. 


434 

'»The  Greatest  of   All  Possible  Virtues." 

In  connection  with  the  language  quoted  on  pages 
161-165  above,  Edmund  Burke  on  the  same  occasion 
said: 

*^  Lord  Bacon  has  very  well  said  that  ^  revenge 
is  a  kind  of  wild  justice.'  It  is  so,  and  without 
this  wild,  austere  stock  there  would  be  no  justice 
in  the  world.  But  when,  by  the  skillful  hand  of 
morality  and  wise  jurisprudence,  a  foreign  scion 
but  of  the  very  same  species  is  grafted  upon  it, 
its  harsh  quality  becomes  changed,  it  submits  to 
culture,  and,  laying  aside  its  savage  nature,  it 
bears  fruits  and  flowers,  sweet  to  the  world,  and  not 
ungrateful  even  to  heaven  itself,  to  which  it  elevates 
its  exalted  head.  The  fruit  of  this  wild  stock  is 
revenge  regulated,  but  not  extinguished — revenge 
transferred  from  the  suffering  party  to  the  com- 
munion and  sympathy  of  mankind.  This  is  the 
revenge  by  which  we  are  actuated,  and  which  we 
should  be  sorry,  if  the  false,  idle,  girlish,  novel- 
like morality  of  the  world  should  extinguish  in 
the  breasts  of  us  who  have  a  great  public  duty  to 
perform. 

^'  This  sympathetic  revenge  which  is  condemned 
by  clamorous  imbecility  is  so  far  from  being  a 
vice  that  it  is  the  greatest  of  all  possible  virtues,  a 
virtue  which  the  uncorrupted  judgment  of  man- 
kind has  in  all  ages  exalted  to  the  rank  of  heroism. 
To  give  up  all  the  repose  and  pleasures  of  life,  to 
pass  sleepless  nights  and  laborious  days,  and 
what  is  ten  times  more  irksome  to  an  ingenuous 
mind,  to  offer  oneself  to  calumny  and  all  its  herd  of 
hissing  tongues  and  poisoned  fangs,  in  order  to 
free  the  world  from  fraudulent  prevaricators,  from 
cruel  oppressors,  from  robbers  and  tyrants,  has,  I 
say,  the  test  of  heroic  -virtue  and  well  deserves 
such  a  distinction.     The  Commons,  despairing  to 


435 

attain  the  height  of  this  virtue,  never  lose  sight 
of  it  for  a  moment.'' 

The  principle  thus  declared  by  Burke  is  in  the  Bible 
stated  in  a  declaration  of  the  Deity,  as  follows  ijsaiah 
xiii:  II,  12): 

*'And  I  will  punish  the  world  for  their  evil  and 
the  wicked  for  their  iniquity;  and  I  will  cause  the 
arrogancy  of  the  proud  to  cease,  and  I  will  lay  low 
the  haughtiness  of  the  terrible.     I    WILL   make   a 

MAN   MORE    PRECIOUS    THAN    FINE    GOLD,    EVEN    A 
MAN,  THAN  THE  GOLDEN  WEDGE  OF  OpHIR." 

Lord  Bacon,  in  the  essays,  defines  goodness  thus: 

"I  take  goodness  in  this  sense,  the  affecting  of 
the  weal  of  men,  *  *  of  all  virtues  and  dignities  of 
the  mind  the  greatest,  being  the  character  of  the 
Deity;  and  without  it  man  is  a  busy,  mischievous, 
wretched  thing,  no  better  than  a  kind  of  vermin.'' 

I  therefore  appeal  to  the  people,  to  their  goodness,  to 
their  ^'greatest  of  all  possible  virtues." 


To  the  People   of  San  Francisco: 

While  I  write  these  pages  it  has  already  been  for 
almost  five  years  my  lot  to  make  in  your  midst  such  a 
struggle  for  human  right  as  was  never  before  made  in 
this  nation.  The  goodness,  the  "greatest  of  all  possible 
virtues"  of  the  people  here  has  been  greatly,  even 
though  not  suf&ciently,  testified  by  the  responses  which 
have  been  made  to  the  two  short  and  inadequate  appeals 
mentioned  in  preceding  pages. 


43'6 

To  you  particularly  I  still  appeal.  In  this  place  the 
outrages  upou  me  have  been  committed  and  are  unre- 
lentingly enforced.  How  great  and  atrocious  those  out- 
rages are,  how  effectively  they  strike  down  the  rights 
of  every  individual — all  this  I  have  here  striven  to  show. 
Here  I  have  been  compelled  to  make  so  long  and 
terrible  a  struggle.  In  this  place,  among  3^ou,  from 
you,  by  you^  I  still  ask  particularly  such  encourage- 
ment as  shall  make  the  struggle  successful  and  a 
mighty  landmark  of  human  right  and  justice. 

In  San  Francisco  a  new  charter  has  lately  been 
adopted.  In  the  hope  that  the  evil  and  irresponsible 
oligarchy  called  The  Southern  Pacific  Company  will 
allow  the  new  charter  of  San  Francisco  to  stand,  various 
candidates  for  the  public  offices  created  by  it  are  soon  to 
be  placed  before  the  people  of  San  Francisco  for  their 
choice.  The  most  important  office  for  which  an  incum- 
bent may  be  thus  chosen^is  the  great  office  of  Mayor  of 
Sati  Francisco. 

Some  of  the  prospective  candidates  for  these  offices 
have  already  sought  to  recommend  themselves  by 
praiseworthy  conduct  in  respect  to  public  expenditures, 
the  public  taxes  and  in  proposing  various  public  im- 
provements, such  as  the  extension  of  parks,  the 
beautifying  of  the  city,  and  the  improvement  of  its 
sanitary  condition.  If  the  new  charter  should  be 
allowed  to  stand,  candidates  w411  ask  for  votes  by 
announcing  their  positions  upon  such  questions. 

But  in  San  Francisco  and  throughout  the  State  there 
is  absolutely  needed  a  still  more  fundamental  public 
improvement,  namely,  security  for  the  fundamental 
rights  of  a  human  being.  That  improvement  can  be 
had  only  by  arousing  public  opinion. 


437 

In  ancient  Rome  the  elder  Cato,  whenever  he  spoke, 
no  matter  upon  what  subject,  would  close  by  declaring 
solemnly,  ^'^ And  Carthage  must  be  destroyed!''^  And 
in  consequence  of  the  resolve  thus  urged,  the  great, 
wealthy,  corrupt  and  perfidious  Carthage  was  de- 
stroyed. 

A  city  and  a  State  where,  when  a  citizen  dies,  his 
defenseless  family  can  be  subjected  to  such  outrages 
and  oppression  as  have  been  deliberately,  wickedly  and 
relentlessly  visitjed  here  upon  Mrs.  Fanny  Levinsoa 
and  her  daughters — such  a  city,  such  a  State,  has  more 
fundamental  needs  than  parks  and  the  municipal  own- 
ership of  utilities  and  beautiful  streets  and  splendid 
houses. 

A  city  and  a  State  where  a  citizen  and  his  family  can 
be  deliberately  and  wickedly  and  persistently  done  to 
death  through  years  of  torture  and  openly,  as  a  "^^pun- 
ishment," a  ''penalty"  upon  him  for  advocating  before  a 
tribunal  established  by  the  people  as  a  court  of  justice, 
the  cause  of  such  a  family  of  three  defenseless  women, 
against  the  unspeakable  treachery  and  villainy  of  their 
betrayers  and  despoilers — ^^such  a  city  and  such  a  State 
has  a  more  fundamental  need  than  fine  parks,  fine 
streets  and  fine  houses. 

A  city  and  a  State,  where  fal^se,  lying,  malevolent 
wretches,  the  foulest  and  most  dangerous  enemies  of 
mankind,  sit  as  Justices  of  the  Supreme  Court  of  jus- 
tice— where,  as  here,  it  is  the  common  talk  that  such 
are  their  characters — where  it  is  absolutely  true  and 
commonly  understood  that  such  corrupt  judges  are  the 
foul  and  wicked  agents  of  so  powerful,  terrible  and  evil 
an  organization  as  The  Southern  Pacific  Company — 
such  a  city  or  State  is  not  to  be  saved  by  owning  its 


438 

public  utilities  or  by  beautiful    parks  and    handsome 
streets  and  houses. 

I  therefore  urge  the  people  to  give  their  votes  at  any 
and  every  election  to  those  candidates,  if  any  there  shall 
be,  or  to  that  political  party,  if  such  there  shall  be,  from 
whom  there  shall  be  heard  a  public  denunciation  of  the 
false  and  corrupt  Judges  of  the  Supreme  Court  of  this 
State  and  a  demand  that  such  false  and  corrupt  Judges 
be  removed  and  made  an  example.  To  such  candidates, 
to  such  a  political  party,  as  shall  refuse  any  such  ex- 
pression, the  words  of  the  gospel  are  applicable: 

"Woe  unto  you,  scribes  and  Pharisees,  hypo- 
crites !  for  ye  pay  tithe  of  mint  and  anise  and  cum- 
min, and  have  omitted  the  weightier  matters  of 
the  law,  judgment,  mercy,  and  faith;  these  ought 
ye  to  have  done,  and  not  to  leave  the  other 
undone. 

"Ye  blind  guides,  which  strain  at  a  gnat  and 
swallow  a  camel. 

"Woe  unto  you,  scribes  and  Pharisees,  hypo- 
crites !  for  ye  make  clean  the  outside  of  the  cup 
and  of  the  platter,  but  within  they  are  full  of  ex- 
tortion and  excess. 

"Thou  blind  Pharisee,  cleanse  first  that  which  is 
within  the  cup  and  platter,  that  the  outside  of  them 
may  be  clean  also. 

"Woe  unto  you,  scribes  and  Pharisees,  hypo- 
,  crites !  for  ye  are  like  unto  whited  sepulchres, 
.    which  indeed  appear  beautiful  outward,   but    are 

within  full  of  dead  men's  bones,  and  of  all  unclean- 

ness.'' 


439 

The  following  lines  of  Sir  Wm.  Jones,  though  writ- 
ten particularly  for  Great  Britain,  state  a  truth  equally 
important  here: 

What  constitutes  a  state  ? 
Not  high-raised  battlement  or  labored  mound, 

Thick  wall  or  moated  gate; 
Not  cities  proud  with  spires  and  turrets  crowned; 

Not  bays  and  broad-armed  ports, 
Wiiere,  laughing  at  the  storm,  rich  navies  ride; 

Not  starred  and  spangled  courts, 
Where  low-browed  baseness  wafts  perfume  to  pride. 

No: — men,  high-minded  men. 

*  *  *  * 

Men  who  their  duties  know, 
But  know  their  rights,  and,  knowing,  dare  maintain, 

Prevent  the  long- aimed  blow,  ^ 
And  crush  the  tyrant  while  they  rend  the  chain. 

These  constitute  a  state. 


HORACE  W.  PHILBROOK. 


San  Francisco,  Cal., 

August,  1899. 


APPENDIX 


IT  HE  OPINION  OF  JUDGE   WALLACE  ON  DECIDING 
THE  CASE  IN  THE  SUPERIOR  COURT, 
JANUARY  23,  1893-'] 


This  action,  gentlemen,  is  brought  upon  allegations  of  fraud, 
in  fact,  actual  fraud,  as  I  understand  it;  the  general  charge  is 
that  these  defendants,  upon  the  death  of  their  late  partner, 
undertook  in  the  ways  charged,  to  cheat  the  mother  and  sisters 
of  the  deceased  man  out  of  their  just  share  of  the  assets  of  this 
partnership.  Now,  I  have  not  seen  any  evidence  whatever  that 
would  support  such  a  charge;  I  have  seen  no  evidence  that  the 
defendants  have  engaged  in  anything  of  the  kind;  all  of  the 
circumstances  go  to  the  opposite  conclusion;  this  business  of 
winding  up  seems  to  have  been  done  in  the  usual  way,  so  far  as 
I  can  gather,  and  that  this  inv^entory  was  honestly  taken,  and 
that  it  was  just,  I  have  no  doubt;  it  seems  to  me  that  all  the 
circumstances  show  it;  I  have  not  yet  heard  of  any  property 
that  was  left  out  of  the  inventory  except  this  supposed  good 
will;  that  omission  appears  on  the  face  of  the  inventory;  there 
was  no  concealment  about  it  at  all  events.  Then  there  was  an 
estimate  of  value;  singularly  enough,  the  weight  of  the  testi- 
mony here  is  that  according  to  the  usual  mercantile  way  of  ascer- 
taining what  this  old  lady  and  her  two  daughters  ought  to  have 
had,  a  calculation  upon  the  basis  of  65  per  cent,  should  be  made, 
deducting  35  per  cent,  from  the  cost  value;  the  weight  of  the 
testimony  is  that  such  method  is  usual  among  merchants;  prom- 
inent merchants  have  come  here  and  testified  to  that  effect; 
there  seems  to  be  quite  a  unanimity  of  mercantile  opinion  and 
testimony  to  that  effect;  35  per  cent.,  then,  should  have  been 
taken  oflf  from  their  cost  value,  and  that,  said  one  of  the  wit- 
nesses, is  applicable  to  mercantile  business  generally,  even 
where  staple  articles  are  dealt  in.  Such  seems  to  be  the  idea, 
that  from  30  to  35  per  cent,  must  come  off.  Here  they  were  not 
staple  but  fancy  articles — articles  whose  value  depended  in  great 
measure  upon  the  fluctuations  of  fashion,  and  instead  of  deduct- 


4  APPENDIX. 

ing  at  the  rate  of  35  per  cent.-,  they  took  off  only  2  per  cent. ;  that 
was  liberal  on  the  part  of  the  defendants;  they  actually  gave  up 
33  per  cent.,  as  I  understand  the  testimony  to  begin  with.  That 
fact  of  itself  would  overbalance  any  calculation  I  have  seen,  or 
suggestion  of  what  was  claimed  to  have  been  lost  to  plaintiff  in 
other  directions.  If  an  accounting  were  now  ordered,  and  a 
readjustment,  defendants  would  have  a  right  to  invoke  the  estab- 
lishment and  accepted  rule  of  mercantile  valuation  of  the  goods; 
they  v^rould  say,  "Very  well,  take  this  stocl^  at  65  per  cent,  in- 
stead of  98;  we  are  content."  I  don't  think  the  complainant 
here,  or  these  ladies,  would  get  anything  like  the  amount  of 
money  they  got  on  the  accounting,  but  it  is  enough  for  me  to  say 
that  this  bill  proceeds  upon  the  grounds  of  actual  fraud  com- 
mitted, and  I  see  no  evidence  to  support  such  a  charge,  and 
therefore  the  judgment  must  be  for  the  defendants. 


ITHE    CITATION    TO    THE   ATTORNEY   70   BE 
DISBARRED.      ISSUED  DEC.  7,  1894.'] 


IN  THE  SUPREME  COURT  OF  THE  STATE 
OF  CALIFORNIA.     IN  BANK. 


In  the  Matter  of  ] 

HORACE  W.  PHILBROOK,  >2i, 188. 

An  Attorney  at  Law.  1 

It  has  come  to   the    attention    of  the  Court   that   one   Horace 
W.  Philbrook,  an  attorney  at  law,  authorized  to  practice  in  this 


\Tlie  CitatL07i  to  be  Disbarred.     Issued  Dec.  7,   ZcS'p/.]       5 

Court,  did,  upon  the  30th  day  of  November,  A.  D.,  1894,  ^^^  ^ 
certain  brief  in  a  certain  cause  then  pending  in  this  Court,  num- 
bered 15,857,  and  entitled  Ira  P.  Rankin,  Special  Administrator 
of  the  estate  of  John  lycvinson,  deceased,  Plaintiff  and  Appellant, 
vs.  William  J.  Newman  and  Benjamin  Newman,  Defendants  and 
Respondents,  in  which  said  brief  there  are  found  matters  which 
in  the  mind  of  the  Court  are  of  a  scandalous  and  contemptuous 
character.  The  said  scandalous  and  contemptuous  matters  are 
found  upon  the  pages  of  said  brief  commencing  at  page  313 
thereof,  and  extending  consecutively  down  to  and  including  a 
portion  of  page  379  thereof,  and  the  whole  tenor  of  said  matter 
may  be  fairly  illustrated  by  the  following  excerpt,  taken  from 
pages  377  and  378: 


"It  is  not  enough  for  Courts  of  Justice  to  be,  in  fact,  pure. 
In  addition  to  the  fact,  there  must  exist  the  fullest  confi- 
dence in  their  purity.  It  is  not  enough  for  Judges  to  be,  in 
fact,  strong  enough  to  resist  temptation.  They  must  not 
allow  themselves  to  be  tempted.  Examine  carefully  and 
thoroughly  the  secret  transaction  of  Sept.  6,  1890.  It  was 
without  an  extenuating  circumstance.  You  have  before  j'ou 
here  the  proof  of  what  its  contrivers  and  users  think  of 
Courts  of  Justice  and  of  Judges.  You  behold  their  evil  and 
most  contemptuous  confidence.  They  rely  solely  upon  the 
corrupting  force  of  their  corrupt  contrivance,  the  secret 
transaction  of  Sept.  6,  1890;  and  solely  upon  that  reliance, 
they  have  been  ever  since  Sept.  6,  1890,  and  still  are  as  con- 
fident of  a  final  judgment  for  the  Newmans  as  if  they  alreadj^ 
had  it  locked  up  at  home.  And  is  it  not  probable  then,  that 
many  others  think  with  them  that  the  Courts  may  be  cor- 
rupted, the  judgments  of  Judges  perverted,  and  that  others, 
still  more  numerous,  suspect  it  ?  But  if  this  secret  transac- 
tion of  Sept.  6,  1890,  is  not  declared  illegal  and  void  upon 
the  rules  and  principles  declared  in  Egerton  vs.  Earl  Brown- 
low,  then  all  to  whom  knowledge  of  the  case  shall  come, 
will  no  longer  merely  suspect  or  even  think  that  the  Courts 
may  be  corrupted;  they  will  know  it;  they  may  point  to  the 
decision  here  as  full  proof  of  it;  for  it  will  be  established 
that  such  practices  are  permissible,  and  if  permissible,  they 
are  sure  to  have  effect." 

By  reason  of  the  foregoing  premises,  it  is   therefore,    ordered 
that  he,  the  said  Horace  W.   Philbrook,,  appear  before  the  Court 


6  APPENDIX. 

on  the  17th  day  of  December,  A.  D.,  1894,  at  10  A.  M.  at  the 
Court-room  thereof,  in  the  City  and  County  of  San  Francisco, 
and  at  that  time  show  cause  why  he,  the  said  Philbrook,  should 
not  be  removed  from  his  office  as  an  attorney  at  law,  and  debarred 
from  further  practicing  before  the  courts  of  this  State,  for  having 
violated  his  oath  and  duties  as  an  attorney  of  this  Court  in  filing 
the  said  brief. 

It  is  further  ordered  that  a  certified  copy  of  the  foregoing  order 
be  forthwith  served  upon  said  Horace  W.  Philbrook  by  the 
Bailifi"  of  the  Court,  and  the  return  made  thereof. 

BEATTY,  C.  J., 

FITZGERALD,  J., 

>IcFARLAND,  J., 

DeHAVEN,  J., 

GAROUTTE,  J., 

VAN  FLEET,  J. 


[NEWS  ARTICLE  IN  THE  EVENING  POST, 
DEC,  7,  1894..'] 


PHILBROOK'S  FIX. 


Disbarment  Proceedings  Have  Been  Instituted. 


The  Supreme  Court  Cites  Him  to  Appear  Before  It. 

It  is  Generally  Believed  that  only  a  Most  Abject  Apology  Will 
Save  Him. 


Attorney  Horace  W.  Philbrook's  attack  upon  the  Supreme 
Court  in  general  and  Justice  Harrison  in  particular  has  landed 
him  in  a  peck  of  trouble. 


[^News  Article  in   The  Evening  Post,  Dec.  7,  1894.']         7 

This  morning  he  was  cited  to  appear  and  show  cause  why  he 
should  not  be  disbarred  from  practice.  The  order  reads  as 
follows  : 

"It  has  come  to  the  attention  of  the  Court  that  one  Horace 
W.  Philbrook,  an  attorney-at-law,  authorized  to  practice  in 
this  Court,  did,  upon  the  30th  day  of  November,  A.  D.,  1894, 
file  a  certain  brief  in  a  certain  cause  then  pending  in  this 
Court,  numbered  15,857,  and  entitled  Ira  P.  Rankin, 
Special  Administrator  of  the  estate  of  John  Levinson, 
deceased.  Plaintiff  and  Appellant,  vs.  William  J.  Newman  and 
Benjamin  Newman,  Defendants  and  Respondents,  in  which 
said  brief  there  are  found  matters  which  in  the  mind  of  the 
Court  are  of  a  scandalous  and  contemptuous  character.  The 
said  scandalous  and  contemptous  matters  are  found  upon  the 
pages  of  said  brief  commencing  at  page  313  thereof,  and 
extending  consecutively  down  to  and  including  a  portion  of 
page  379  thereof,  and  the  whole  tenor  of  said  matter  may  be 
fairlj^  illustrated  by  the  following  excerpt  taken  from  pages 
377  and  378  : 

"  '  It  is  not  enough  for  Courts  of  Justice  to  be,  in  fact  pure. 
In  addition  to  the  fact,  there  must  exist  the  fullest  con- 
fidence in  their  purity.  It  is  not  enough  for  Judges  to  be 
in  fact,  strong  enough  to  resist  temptation.  They  must  not 
allow  themselves  to  be  tempted.  Examine  carefully  and 
thoroughly  the  secret  transaction  of  Sept.  6,  1890.  It  was 
without  an  extenuating  circumstance.  You  have  before  you 
here  the  proof  of  what  its  contrivers  and  users  think  of 
Courts  of  Justice  and  of  Judges.  You  behold  their  evil  and 
most  contemptuous  confidence.  They  rely  solely  upon  the 
corrupting  force  of  their  corrupt  contrivance,  the  secret  trans- 
action of  Sept.  6,  1890  ;  and  solely  upon  that  reliance,  they 
have  been  ever  since  Sept.  6,  1890,  and  still  are  as  confident  of 
a  final  judgment  for  the  Newmans  as  if  they  already  had  it 
locked  up  at  home.  And  is  it  not  probable  then,  that  many 
others  think  with  them  that  the  Courts  may  be  corrupted, 
the  judgment  of  Judges  perverted,  and  that  others,  still 
more  numerous,  suspect  it?  But  if  this  secret  transaction 
of  Sept.  6,  1890,  is  not  declared  illegal  and  void  upon  the 
rules  and  principles  declared  in  Egerton  vs.  Earl  Brownlow, 
then  all  to  whom  knowledge  of  the  case  shall  come,  will  no 
longer  merely  suspect  or  even  think  that  the  Courts  may  be 
corrupted;  they  will  know  it;  they  may  point  to  the  decision 
here  as  full  proof  of  it ;  for  it  will  be  established  that  such 
practices  are  permissible,  and  if  permissible,  they  are  sure  to 
have  effect.' 


8  APPENDIX. 

• 

"  By  reason  of  the  foregoing  premises,  it  is  therefore, 
ordered  that  he,  the  said  Horace  W.  Philbrook,  appear 
before  the  Court  on  the  17th  day  of  December,  A.  D.,  1894, 
at  10  A.  M.,  at  the  court-room  thereof,  in  the  City  and 
County  of  San  Francisco,  and  at  that  time  show  cause  why 
he,  the  said  Philbrook,  should  not  be  removed  from  his 
office  as  an  attorney  at  law,  and  debarred  from  further  prac- 
ticing before  the  Courts  of  this  State  for  having  violated  his 
oath  and  duties  as  an  attorney  of  this  Court  in  filing  the 
said  brief. 

"  It  is  further  ordered  that  a  certified  copy  of  the  fore- 
going order  be  forthwith  served  upon  said  Horace  W.  Phil- 
brook by  the  Bailiff  of  the  Court,  and  the  return  made 
thereof." 

The  order  is  signed  by  all  the  Justices  except  Harrison.  The 
general  belief  among  attorneys  is  that  only  the  most  abject  apol- 
ogy will  save  Philbrook,  and  it  is  doubtful  if  that  will  satisfy  the 
Court. 


[EDITORIAL  IN  THE  EVENING  POST,  DEC.  12,  1894.'] 


THE  SUPREME  COURT. 

The  people  of  the  State  of  California  have  not  in  their  power 
of  giving  a  more  honorable  or  dignified  office  than  that  of  Jus- 
tice of  the  Supreme  Court.  Those  who  have  aspired  to  that 
high  place  have  been  men  of  blameless  lives,  probity,  great  legal 
talent,  learning  and  ability  ;  the  ablest  lawyers  of  the  State  have 
been  content  to  round  out  an  upright  life  at  the  bar  with  a  term 
on  the  Supreme  bench.  The  people,  knowing  the  character  of 
men   whom   they   have   chosen    for    that   elevated   office,    have 


[^Editorial  in   The  Evenbig  Post,  Dec.  12,  i8g^^  9 

rightly  regarded  the  Supreme  Court  as  the  body  that  stood 
between  themselves  and  oppression,  the  power  that,  free  from  all 
improper  influences,  decided  wisely,  justly  and  righteously. 

So  deep  a  respect  have  we  been  accustomed  to  feel  for  this  dig- 
nified body  that  the  filing  of  a  brief  charging  improper  motives 
to  one  of  the  Justices,  and  threatening  the  Court  by  inuendo 
and  insinuation,  impels  disapprobation.  We  would  not  rob  the 
humblest  man  of  his  right  to  a  hearing,  and  it  has  been  to  the 
honor  of  our  Supreme  Courts  that  the  poorest  and  the  meanest 
have  had  their  plaints  as  closely  scrutinized  as  the  appeals  of  the 
richest  and  strongest.  But  never  before  in  the  history  of  the 
Supreme  Court, of  California  has  a  lawyer  had  the  vindictive 
audacity  to  come  forward  and  cast  aspersions  on  that  body  to 
which  the  people  have  been  accustomed  to  look  with  respect. 

In  Court,  when  attorneys  are  battling  for  their  clients'  lives, 
it  sometimes  happens  that  in  the  heat  of  anger,  words  are  spoken 
that  are  outside  of  courtesy  ;  but  it  is  the  rule  that  the 
hasty  language  is  withdrawn  and  the  speaker  is  purged 
of  his  contempt.  There  is  no  such  excuse  for  Mr.  Philbrook, 
apparently,  and  yet  we  hope  that  the  Supreme  Court  will  allow 
him  to  withdraw  his  insolent  and  disrespectful  brief  and  give 
him  an  opportunity  to  apologize. 

The  Supreme  Court  is  too  firmly  planted  in  the  esteem  of  the 
people  ;  the  grand  men  who  adorn  it  are  too  much  respected  by 
the  public  to  be  injured  by  the  brief  referred  to.  Yet  it  is  unfort- 
unate that  a  lawyer  could  so  far  forget  the  dignity  of  his  calling, 
could  so  easily  lose  sight  of  the  reverence  he  owes  the  idea  of  the 
office  of  Supreme  Justice  as  to  use  the  language  Mr.  Philbrook 
did.  The  dignity  of  our  Courts  must  be  upheld,  and  when  the 
time  comes  that  notoriety-hunting  men  seek  to  defame  them,  the 
time  has  come  when  law-abiding  citizens  must  rally  to  their 
support. 


lo  APPENDIX. 

IE D I  TO  RIAL  IN  THE  RECORD-UNION, 
DEC.  13,  1894.] 


AN  OUTRAGEOUS  ASSAULT. 


THE  PHILBROOK  CASE  AND  THE  SUPREME  COURT. 


Probably  not  in  the  history  of  the  American  judicial  system 
has  there  been  made  such  a  causeless,  unprovoked  and  unmanly 
assault  upon  the  courts  of  the  people  by  a  lawyer  as  that  re- 
cently witnessed  in  San  Francisco. 

A  member  of  the  bar  has  appeared  before  the  Supreme  Court 
of  the  State  and  filed  a  brief  in  which  he  assumes  this  threaten- 
ing attitude  toward  the  Court,  and  expresses  its  meaning  in  un- 
mistakable language  :  "I,  as  an  officer  of  this  Court,  say  for  my 
clients  to  this  Court  that  if  you  dare  to  decide  against  my  clients' 
position  in  this  case  it  will  be  because  you  have  been  bribed  to 
do  so."  He  then  goes  on  in  this  remarkable  document  to  fortify 
the  threat  by  an  argument  to  show  that  the  deduction  of  bribery 
and  corruption  will  be  inevitable  if  the  decision  is  against  him. 

The  Court  has  cited  Attorney  Philbrook  to  appear  before  it  on 
the  17th  inst.,  and  show  cause  why  he  should  not  be  debarred 
from  practice  in  all  courts  in  the  State.  Disbarment  will  be  mild 
punishment  for  so  grievous  an  offense.  Under  the  circumstances 
it  is  difficult  to  see  how  the  Court  can  do  otherwise  than  strip 
the  robes  of  "Counselor"  from  the  unworthy  shoulders  of  its 
officer.  It  ought  beside  to  jug  him  in  the  common  jail,  and  let 
him  learn  wisdom  while  he  cools  his  heels  in  prison. 

So  monstrous  is  the  Philbrook  contempt  case,  so  furious  and 
vit^ious  an  assault  upon  the  liberties  of  the  people  is  it,  that  a 
brief  statement  of  facts  before  further  considering  the  case  is 
essential. 

It  will  be  sufficient  to  say  that  a  mercantile  firm  some  years 
ago  suffered  the  loss  of  one  of  its  members  by  death.  The  ad- 
ministrator of  the  estate,  under  the  authority  reposed  in  him  and 
with  the  subsequent  sanction  of  courts  before  which  the  case 
came,  sold  to  the  surviving  partners  the  interest  of  the  deceased 


\_Editorial  in   The  Recor d- Union ^  Dec.  ij,  iSp^.~\  ii 

in  the  firm.  The  contract  of  sale  or  settlement  was  drawn  by 
the  administrator's  attorney,  who  is  now  a  member  of  the 
Supreme  bench,  but  was  then  a  member  of  a  law  firm  in  San 
Francisco. 

This  sale  being  contested  in  one  way  and  another  by  certain 
parties  in  interest,  the  Superior  Court  held  that  the  good  will  of  the 
firm  was  not  a  valuable  thing  for  which  the  surviving  members  of 
the  mercantile  firm  ought  to  pay.  For  this  Philbrook  bitterly 
assails  the  Superior  Court  in  this  same  offensive  brief.  The  case 
coming  into  the  Supreme  Court,  the  attorney  files  a  brief  in  oppo- 
sition of  those  opposing  him  and  contending  for  the  integrity  of 
the  sale.  Replying  to  an  expression  in  the  brief  of  the  other 
side  that  the  contract  of  settlement  is  ''in  the  handwriting  of 
Judge  Harrison,"  Philbrook  opens  the  vials  of  his  wrath  upon  the 
Supreme  bench,  and  in  so  many  words  threatens,  "  If  you  decide 
against  me  it  will  be  because  Mr.  Justice  Harrison  is  one  of  your 
colleagues,  though  that  Justice  does  not  sit  in  the  case."  This, 
Philbrook  declares,  will  be  evidence  of  corruption  and  bribery  of 
the  baldest  kind.  He  uses  this  charge  as  a  threat  to  the  Court, 
warning  it  that  it  dare  not  decide  against  him. 

Under  such  circumstances  the  Court  is  placed  in  this  position, 
if  it  holds  with  Philbrook,  of  being  laid  open  to  the  exultation 
that  he  forced  the  Court  so  to  adjudge  ;  if  it  holds  against  him 
it  will  be  subject  to  his  libel  that  it  is  corrupted  by  the  member- 
ship of  Justice  Harrison.  Fortunately  for  the  Court  though, 
there  have  been  so  many  attempts  in  San  Francisco  to  stimulate 
lawlessness  and  disrespect  for  the  laws  and  the  people's  tribunals, 
it  can  rise  above  all  these  considerations  and  pass  upon  the  issues 
in  the  case  indifferent  to  them,  and  as  the  law  and  common 
justice  demand. 


The  passages  in  the  argument  of  Attorney  Philbrook,  for 
which  the  Supreme  Court  has  cited  him  for  contempt,  are  as  fol- 
lows : 

"  It  is  not  enough  for  Courts  of  Justice  to  be  in  fact  pure. 
In  addition  to  the  fact,  there  must  exist  the  fullest  confidence 
in  their  purity.  It  is  not  enough  for  Judges  to  be  in  fact 
strong  enough  to  resist  temptation.  They  must  not  allow 
themselves  to   be   tempted.     Examine   carefully   and  thor- 


12  APPENDIX. 

oughly  the  secret  transaction  of  September  6,  1890.  It  is 
without  an  extenuating  circumstance.  You  have  before  you 
here  the  proof  of  what  its  contrivers  and  users  think  of 
courts  of  justice  and  of  judges.  You  behold  their  evil  and 
most  contemptuous  confidence. 

"They  rely  solely  upon  the  corrupting  force  of  their  cor- 
rupt contrivance,  the  secret  transaction  of  September  6,  1890, 
and  solely  upon  that  reliance  they  have  been  ever  since  Sep- 
tember 6,  1890,  and  still  are,  as  confident  of  a  final  judge- 
ment for  the  Newmans  as  if  they  already  had  it  locked  up 
at  home.  And  is  if  not  probable  then  that  many  others 
think  with  them  that  the  courts  may  be  corrupted,  the  judg- 
ment of  judges  perverted,  and  that  others  still  more  numer- 
ous suspect  it  ? 

"But  if  this  secret  transaction  of  September  6,  1890,  is 
not  declared  illegal  and  void  upon  the  rules  and  principles 
declared  in  Egerton  vs.  Earl  Brownlow,  then  all  to  whom 
knowledge  of  the  case  shall  come  will  no  longer  suspect  or 
merely  think  that  the  courts  may  be  corrupted;  they  will 
know  it;  they  may  point  to  the  decision  here  as  full  proof 
of  it.  for  it  will  be  established  that  such  practices  are  per- 
missible;  and  if  permissible,  they  are  sure  to  have  effect." 

But  there  are  other  passages  in  this  remarkable  brief  equally 
as  insulting,  contemptuous  and  indecent.  Throughout  the  brief 
bristles  with  quotations  from  Shakespeare,  Cicero  and  the  pofels, 
and  with  satirical,  contemptuous  and  vulgar  sneers  framed  as 
threats,  and  clearly  intended  to  cow  and  browbeat  the  Court. 
Some  of  these  passages  we  quote,  making  no  apology  for  the 
length,  since  the  case  is  of  such  surpassing  importance  that  it 
justifies  full  exploitation. 

"And  let  this,  too,  be  borne  in  mind  by  every  Justice 
who  takes  part  in  the  decision.  You  were  not,  any  more 
than  I,  either  directly  or  indirectly,  a  party  to  the  secret 
transaction  of  September  6,  1890.  "^ 

^  ^  "It  will  never  be  in  any,  even  the  slightest  degree, 
your  act,  j^our  child,  nor  will  you  ever,  in  even  the  slightest 
degree,  be  responsible  for  it,  unless  you  adopt  it  as  your 
own.  Though  it  is  a  lure,  prepared  to  be  held  out  to  you  as 
a  lure,  it  touches  you  not,  unless  you  accept  it.  *  ^  * 

"Again,  suppose  that  Ralph  C.  Harrison,  Milton  S.  Eis- 
ner, William  J.  Newman,  Benjamin  Newman  and  S.  W. 
Raveley  had  deposited  the  means  with  reliable  stakeholders 
— with  William  J.  Newman,  Benjamin   Newman,  Reinstein 


\Editorial  in  The  Record- JJyiioii,  Dec.  /j,  i8g4..'\  13 

&  Eisner  and  E.  R.  Taylor  as  stakeholders — to  be  devoted 
to  bestowing  some  great  gratification  upon  every  Justice  of 
this  Court  who  should  adjudge  this  case  in  favor  of  the 
Newmans,  and  should  announce  the  fact  in  the  transcript 
on  appeal,  would  you  endure  such  a  thing  ?  Could  you 
endure  such  a  thing  ?  ^  *  * 

"A  bribe  is  still  a  bribe  however  it  is  cunningly  sugar- 
coated.  For,  would  it  not  be  a  great  gratification  to  the 
mind  of  every  Justice  who  sits  in  this  case  to  have  such  a 
judgment  pronounced  as  would  declare  Ralph  C.  Harrison, 
Associate  Justice  of  the  same  court  with  himself,  his  daily 
close  associate  in  the  discharge  of  a  public  trust  of  the  most 
sacred  character,  his  intimate  personal  friend,  guiltless  of 
fraud  ? 

"In  the  court  below  the  secret  transaction  of  September 
6,  1890,  was  given  its  full  intended  effect,  and  the  judgment 
there  might  well  have  been  expected,  as  doubtless  it  was 
expected,  to  be  final.  Rarely,  indeed,  could  the  defenseless 
and  the  oppressed  be  expected  to  have  the  courage  or  the 
means,  or  to  find  an  advocate,  to  appeal  from  such  a  judg- 
ment in  such  a  case.  If  now\  in  the  Supreme  Court  of  the 
State  of  California,  the  secret  transaction  of  September  6, 
1890,  is  not  to  be  pronounced  illegal  and  void,  upon  the 
principles  of  law  and  justice,  declared  and  enforced  in  Eger- 
ton  vs.  Earl  Brownlow,  supra,  if  it  is  not  to  be  wiped  out 
utterly  root  and  branch,  and  with  such  emphasis  as  to  re- 
move with  it  its  exhalation  of  poison,  in  some  such  manner 
as  to  be  a  warning  against  like  practice  in  future,  and  to 
the  defenceless  and  oppressed  a  protection  in  the  future 
against  wicked  and  impudent  audacity  and  insolence,  and 
it  must  not  be  expected  that  the  contrivers  and  users  of  the 
secret  transaction  of  September  6,  1890,  have  got  the  start 
of  the  majestic  world,  and  are  to  bear  the  palm  alone.  Oth- 
ers will  elbow  them  in  their  own  field.  *  *  * 

"The  same  bribe  is  also  expressed  by  them  [the  opposing 
side  in  its  brief]  at  folio  616,  in  its  outcry:  '  It  is  in  Judge 
Harrison's  hand  writing.'  The  same  bribe  is  also  thrust 
forward  in  the  witness  clauses  of  the  secret  papers,  *  in  the 
presence  of  Ralph  C.  Harrison.'  The  cunning  bribe  is  of 
such  a  sort  that  it  is  to  remain  a  bribe  even  if  Ralph  C. 
Harrison  should  retire  from  his  high  ofiice."  *  ^  * 


The  Philbrook  contempt  case  now  before  the  Supreme  Court 
of  this  State  strikes  at  the  root  of  all  our  liberties,  since  there 
is  no  freedom  with  us  except  under  law.  The  true  government 
derives  its  powers  from   the  consent  of  the  governed.     We  havo 


14  APPENDIX. 

established  such  government.  It  is  divided  in  its  activity  and 
ministrations  to  happiness,  and  assurance  of  peace  and  security 
into  three  co-ordinate  branches — the  legislative,  the  judicial,  and 
executive.  The  office  of  the  one  is  to  declare  the  will  of  the 
people;  of  the  other,  to  interpret  the  laws  and  hold  the  repre- 
sentative body  within  the  lines  of  conferred  powers,  and  of  the 
third,  to  see  that  the  mandate  of  the  laws  are  faithfully  observed. 

Now  there  attaches  to  the  judicial  arm  through  tradition,  of 
necessity  and  by  virtue  of  its  functions,  certain  powers  and 
rights;  namely,  to  maintain  its  dignit}^  because  it  is  the  final 
tribunal  of  the  people,  and  to  discipline  those  licensed  to  plead 
at  its  bar.  There  is  interwoven  into  the  very  texture  of  the 
judicial  system  the  assurance  that  the  courts  shall  be  free  from 
assault,  threat  or  cow;  that  they  shall  be  treated  with  respect, 
not  corruptly  approached,  or  be  subject  to  duress  or  compulsion 
— these  things,  not  because  of  the  men  who  have  been  invested 
with  the  judicial  office,  but  because  the  office  is  the  creation  of 
the  people,  and  because  being  the  highest  function  a  people 
through  their  appointed  agencies  can  assume,  it  must  be  free, 
untrammelled,  met  with  respect,  treated  with  decency,  and  its 
decrees  bowed  to  until  reversed. 

Doubtless  courts,  being  human  institutions,  are  not  perfect, 
but  they  are,  as  a  rule,  the  highest  development  of  the  political 
civilization  of  a  people,  and  therefore  the  people  are  the  very 
last  who  can  suffer  them  to  be  treated  with  contumely.  The 
ethics  of  the  bar  demand  that  its  members  shall,  as  officers  of 
the  Court,  maintain  its  dignity  and  set  the  example  of  respect 
for  it  which  is  demanded  of  all. 

The  lawyer,  therefore,  who  makes  such  jissault  by  inuendo, 
such  threat  direct,  such  contemptuous  address  as  this  Attorney 
Philbrook  indulges  in.  abuses  his  privilege,  soils  the  robes  of 
his  profession,  offends  the  people  whose  tribunal  he  insults,  and, 
by  these  contributions  to  the  lawless  spirit,  strikes  a  blow  at 
order,  law  and  liberty,  and  should  be  disbarred  with  promptness 
and  severity. 

The  laws  express  the  average  knowledge  and  moral  sense  of 
the  communities  which  enact  them;  respect  for  the  tribunals 
"established   to   interpret    the  laws   and    adjudge  between  men. 


[Editorial  iii    The  Record-Union,   Dec.  ij,  iSg^.l  15 

stands  for  the  full  measure  of  our  loyalty  to  free  institutions.  If, 
therefore,  the  spirit  of  unrestraint,  lawlessness  and  fret  against 
the  regulations  of  order  and  security,  have  so  grown  that  this 
offense  of  Philbrook's  can  be  passed  unpunished,  we  have  neared 
the  latter  days  of  republican  institutions. 

The  laws  and  their  administration  have  an  educational  influ- 
ence upon  the  minds  of  men.  If  they  are  so  feeble  that  the  tri- 
bunals of  a  land  can  command  respect  neither  for  law  nor  them- 
selves then  the  hour  of  even  our  partial  democracy  has  struck. 

But  we  have  faith  in  the  courts.  Fallable  though  they  be,  as 
are  their  creators,  they  stand  for  the  highest,  best,  noblest  and 
safest  bulwarks  of  freedom  in  action,  speech  and  print,  and  in 
security  of  life  and  property,  and  the  right  to  seek  happiness. 
They  guarantee  us  in  the  exercise  of  our  constitutional  sover- 
eignty; they  represent  prudence,  justice,  fortitude  and  order; 
they  stand  exponents  of  the  conscience  of  the  communities  that 
constitute  the  nation;  they  actualize  every  virtue  the  State  and 
the  nation  have  as  political  bodies;  they  are  the  shield  and  safe- 
guard against  the  assault  of  the  vicious,  and  of  trespassers  upon 
human  right;  against  the  encroachments  of  arrogance  and  of 
bloated  pretension  upon  the  rights  of  the  law  abiding,  the  weak 
and  the  timid.  If  the  courts  are  not  to  be  respected,  it  this  vic- 
iously contemptuous  performance  of  an  arrogant  and  browbeat- 
ing San  Francisco  lawyer  stirs  in  the  breasts  of  our  people  no 
indignation,  we  have  reached  a  deplorable  stage.  But  we  are 
as  confident  that  every  decent  citizen  feels  this  attack  by  threat 
upon  the  Supreme  Court  to  be  a  personal  assault,  an  offense 
against  his  own  tribunal  and  therefore  against  himself,  as  we 
are  convinced  that  the  Court  has  the  courage  to,  and  will  pun- 
ish Philbrook  as  he  deserves,  and  thus  vindicate  the  high  war- 
rant of  ofiice  issued  to  it  by  the  people. 


i6  APPENDIX. 


[RESOLUTION  OF  THE  BAR  ASSOCIATION  OF  SAN 
FRANCISCO,  ADOPTED  DEC.  //,   1894.] 


Resolved,  That  the  first  and  second  vice-presidents  of  this 
Association,  in  conjunction  with  Judge  A.  L.  Rhodes  and  four 
others  to  be  named  by  the  Chair  (making  a  committee  of  seven), 
appear  before  the  Supreme  Court  of  this  State  on  Monday  the 
17th  day  of  December,  1894,  at  the  hearing  in  the  Matter  of 
Horace  W.  Philbrook,  for  the  purpose  of  seeing  that  said  matter 
is  properly  presented. 


[EDITORIAL  IN  THE  RECORD-UNION,  DEC  20,  1894.'] 


THE  PRESS  AND  THE   PHILBROOK   CASE. 

We  have  in  mind  a  remarkable  instance  of  the  perversity  of 
certain  of  the  press  in  San  Francisco  in  misrepresenting  the 
United  States  Court  in  the  Debs  case  and  in  catering  to  a  disor- 
derly and  revolutionary  spirit.  Another  instance  of  this  danger- 
ous drift  is  found  in  the  Philbrook  contempt  case  now  before  the 
Supreme  Court  of  this  State. 

Certain  of  the  San  Francisco  press  not  only  misunderstand 
that  case  and  misrepresent  it  to  the  people,  but  they  do  so  will- 
fully, though  every  facdity  is  open  to  them  to  ascertain  the  exact 
facts.  Thus,  one  of  the  daily  papers  of  the  metropolis,  declares 
that  the  only  thing  the  Supreme  Court  can  do  is  to  permit  Mr. 
Philbrook  full  opportunity  to  prove  his  charges  against  Mr.  Jus- 
tice Harrison.  Another  sheet  shouts  that  as  Philbrook  has 
charged  fraud  upon  Mr.  Harrison  while  he  was  a  practicing 
attorney  and  before  he  came  to  the  bench,  that  the  thing 
to  do  is  to  come  forward  and  disprove  it.     Still  another  declares 


\Editorial  hi    The  Record- Unioji,   Dec.  20,  1894.']  ^7 

that  the  Bar  Association  is  very  quick  to  prosecute  one  of  its 
members  who  offends  a  court,  but  takes  no  action  in  the  case  of 
others  who  are  dishonest.  We  are  probably  to  conclude,  there- 
fore, that  the  Court  offenders  are  to  be  allowed  to  offend  and  go 
free  of  discipline. 

Whoever  lieard  the  full  statement  of  Mr.  Philbrook  as  made 
to  the  Court  on  Monday;  whoever  listened  to  the  reading  of  his 
elaborate  written  answer  in  which  he  sets  up  all  he  has  to  plead 
in  his  own  behalf;  whoever,  with  the  honest  desire  to  get  at  the 
facts,  listened  to  his  very  long,  deliberate  and  explicit  statement 
to  the  Court,  occupying  the  larger  portion  of  a  day,  must  be 
prepared  to  say  that  such  of  the  San  Francisco  press  as  have 
commented  unfavorably  to  the  Court  upon  the  case  have  out- 
rageously, dangerously^  and  willfully  misrepresented  the  proceed- 
ings. These  papers  claim  for  Philbrook  things  he  does  not 
claim  for  himself;  they  suggest  things  and  comment  upon  them 
that  are  not  in  the  case,  never  were  and  never  will  be.  Their 
comments  all  go  toward  conviction  of  the  public  mind  that  Phil- 
brook is  being  persecuted;  that  someone  is  trying  to  whitewash 
somebody  else;  that  the  Supreme  Court  is  denying  a  human  right 
and  that  the  offending  attorney  is  prevented  from  proving  his 
case. 

The  truth  is,  that  not  before  in  the  history  of  the  Supreme 
Court  of  this  State  has  such  full  and  unrestrained  liberty  been 
granted  to  any  lawyer  as  has  been  conceded  to  Mr.  Philbrook  to 
make  his  case.  Not  a  single  obstacle,  he  admits,  has  been 
thrown  in  his  way,  nor  has,  he  says,  a  moment  of  time  been  be- 
grudged him.  His  persecutors  solicited  the  Court  to  give  him 
all  time  and  all  process  to  present  his  case,  and  the  order  was 
made  affirming  the  request.  Philbrook  himself  has  not  uttered 
one  word  of  complaint  that  he  has  been  unable  to  set  out  his 
defense.  On  the  contrary,  he  presented  in  print  every  particle 
of  testimony  taken  or  that  can  be  taken  in  the  case  out  of  which 
his  own  arises,  and  there  was  not  entered  to  it  a  single  objection. 
In  short  the  perfect  freedom  accorded  him  in  the  Court  was 
phenominal  and  unprecedented,  though  be  abused  the  privilege 
accorded,  wearied  the  patience  of  the  most  patient,  and  intro- 
duced matters  as  foreign  to  the  case  as  the  north  star  to  our 
planet. 


i8  APPENDIX. 

The  story  of  the  Philbrook  case  may  be  simply  told.     A  mer- 
cantile firm  agreed  in  writing  that  on  the  death  of  either  partner 
the  surviving  partners  might  succeed  to  the  business  of  the  firm, 
after  inventory    taken  according   to  usual  mercantile  methods. 
One  of  them  died,  leaving  a  mother  and  sisters  as  heirs.     After  a 
time  the  executor  of  the  will,  under  advise  of  his  attorney,  who 
has  since  been  elevated  to  the  Supreme  bench,  by  the  votes  of 
the  people,  sold  to   the  surviving   partners  the  interest  of  the 
decedent  according  to  the  terms  of  the  partnership  agreement  on 
an  inventory  taken,  in  which  not  35  per  cent.,  as  is  customary, 
was  taken  off  the  cost  price  of  broken  stock,  but  only  2  per  cent. 
The  heirs  were  not  consulted  as  to  the  sale.     It  was  consum- 
mated by  the  executor  and  the  buyers,  and  the  executor's  attor- 
ney, Mr.  Harrison,  drew  the  papers  and  they  were  executed  in 
the  presence  of  the  executor,  the  buyers  and  their  attorneys  and 
the  executor's  attorneys.     The   heirs,   the   mother   and  sisters, 
through  their  attorney,  set  up  the   claim  that  the  good  will  of 
the  business  should  be  included  in  any  valuation.     The  attorney 
of  the  executor  had  distinctly  told  the  attorney  for  the  heirs  that 
there  was  no  good  will  to  sell,  as  the  partnership  agreement  pre- 
cluded it  and  was  binding,  and  he  should  advise  the  executor  to 
carry  it  out,  as  it  was  the  law,  which  he  did.     For  some  time  the 
sale  was  not  known  to  the  heirs,  and  this  is  charged  as  evidence 
of  secrecy  and  fraud.     They  were  not  notified  to  be  present  at 
the  sale,  and  this  is  charged  as  part  of  a  conspiracy   to  defraud. 
The  agreement  of  sale  was  written  by  the  executor's  attorney, 
now  a  Justice,  and  this,  it  is  charged,  is  evidence  of  a  conspiracy 
to  influence  the  minds  of  any  Judges  before  whom  any  litigation 
might  come,  because  the  attorney  expected  to  be  elected  to  the 
bench. 

It  was  admitted  that  the  only  issue  raised  between  the  heirs 
and  the  executor  prior  to  the  sale  was  as  to  the  good  will.  The 
heirs  brought  their  action  to  set  aside  the  sale,  we  believe,  and 
the  whole  matter  came  before  Judge  Wallace  of  the  vSuperior 
Court,  and  was  elaborately  tried  and  all  the  facts  brought  out, 
even  to  the  social  relations  of  the  executor  and  the  buyer  and 
the  nomination  and  election  of  Harrison,  and  everything  else 
that  the  heirs  wished.  The  Court  found,  as  a  matter  of  fact, 
that  there  was  no  fraud,  no  collusion,  no  scintilla  of  evidence 


{^Editorial  in    The  Record- Union,   Dec.  20,  iSg^^  19 

suggesting  fraud  or  conspiracy,  no  forecast  of  possible  influence 
upon  Judges'  minds,  and  no  good  will  to  sell,  and  that  the  exec- 
utor had  acted  within  the  law  and  the  bounds  of  his  duty. 

From  this  judgment  the  case  went  to  the  Supreme  Court  upon 
appeal.  It  also  w^ent  up  in  another  form  on  a  separate  appeal 
not  material  to  this  consideration.  When  the  heirs'  attorney, 
Mr.  Philbrook,  came  to  file  his  brief  in  the  Supreme  Court,  he 
went  to  the  extent  of  hundreds  of  pages  in  the  exploitation  of 
the  whole  case,  charging  on  the  testimony  certified  up  that  there 
was  fraud  ;  that  Justice  Harrison  was  at  the  bottom  of  it,  and 
that  with  cunning  he  had  foreseen  his  election,  and  that  his  per- 
sonality in  the  case  would  have  an  effect  upon  the  minds  of  his 
associates  in  the  Court  and  prevent  them  from  doing  justice  in 
the  case,  because  they  would  want  to  protect  the  reputation  of 
a  member  of  the  bench ;  and  he  charged  that  in  fact  it  would  so 
influence  and  have  an  effect  upon  the  minds  of  the  members  of 
the  Court,  which  is  to  say  that  the  Supreme  Court  is  open  to 
corrupting  influence. 

But  the  attorney  went  beyond  this  and  told  the  Supreme 
Court  in  so  many  words  :  If  you  decide  against  me  it  will  be 
taken  that  you  ratify  and  make  permissible  the  corruption  I 
charge  against  Mr.  Harrison.  If  you  decide  against  me  it  will 
be  because  you  are  yourselves  corrupt. 

"But  if  this  secret  transaction  of  September  6.  1890,  is 
not  declared  illegal  and  void  upon  the  rules  and  principles 
declared  in  Egerton  vs.  Karl  Brownlow,  then  all  to  whom 
knowledge  of  the  case  shall  come  will  no  longer  merely 
suspect  or  even  think  that  the  Courts  may  be  corrupted. 
They  will  know  it.  Thej^  may  point  to  the  decision  here  as 
full  proof  of  it,  for  it  will  be  established  that  such  practices 
are  permissible,  and,  if  permissible,  they  are  sure  to  have 
effect." 

For  this  and  the  whole  insulting  line  of  charges  the  Court 
cited  him,  as  an  officer  of  its  own,  to  show  cause  why  he  should 
not  be  disciplined — why  he  should  not  be  disbarred  for  violation 
of  his  oath  as  an  attorney.  Generally,  neither  press  nor  people 
take  concern  when  a  court  castigates  one  of  its  own  attorneys. 
If  the  courts  are  not  to  keep  these  gentlemen  straight  no  one 
else  can.     But  here  we  have  the  press,  in  part,  rushing  to  the 


20  APPENDIX. 

defense  of  Philbrook  simply  and  solely  because  he  has  laid  a 
charge  of  corruption  which  has  failed  of  proof,  and  has  threat- 
ened a  court  if  it  does  not  decide  as  he  wishes. 

His  defense  is  that  what  he  has  set  out  he  believes  to  be  true, 
as  to  corruption;  that,  as  to  the  threat,  he  meant,  "people 
would  say  the  Court  was  corrupt  if  the  Court  rules  against 
him";  that  he  used  the  language  likewise  in  a  Pickwickian 
sense  ;  that  he  has  entire  confidence  in  the  Court  and  knows  it 
is  fearless  and  not  corrupt,  else  he  had  not  appealed;  that  the  right 
of  free  speech  guarantees  him  liberty  to  sa^^  what  he  pleases  in 
his  brief  in  defense  of  the  rights  of  his  clients  ;  that  it  is  they 
who  speak  and  not  him. 

To  which  his  fellow  members  of  the  San  Francisco  bar,  by 
their  own  committee,  in  effect  reply  :  "  The  language  of  the 
brief  is  grossly  unprofessional  and  contemptuous,  and  if  the 
respondent  does  not  know  it,  he  is  not  fit  to  practice  ;  if  he  does 
know  it,  then  he  ought  to  be  punished  by  disbarment  ;  the 
alleged  facts  he  sets  up  are  not  proven,  and  the  Court  below  so 
found,  and  an  appeal  is  pending  which  is  not  before  the  Supreme 
Court  in  this  proceeding,  but  simply  the  question  is  the  threat  in 
the  brief  in  violation  of  the  oath  of  the  attorney,  and  is  it 
dangerous  and  defiant  ?" 

And  this  is  the  case  in  brief  which  is  so  misrepresented  in  the 
city  of  its  origin.  It  is  this  case  that  has  brought  congratula- 
tions of  Philbrook  from  the  whole  job-lot  of  people  with  whom  it 
is  sufficient  to  lay  a  charge  to  have  its  truth  assumed,  if  only  it  is 
against  a  court  of  the  land.  Perhaps,  however,  the  most  humiliat- 
ing outside  thing  in  the  whole  matter  is  the  fact  that  a  newspaper 
claiming  to  be  representative  of  the  metropolis  should  in  its  criti- 
cism of  the  case  so  far  go  wrong  as  to  declare  that  "all  there  is  for 
the  Court  to  do  is  to  give  Philbrook  full  opportunity  to  prove 
his  case";  we  assume  it  is  meant  that  he  should  be  given 
liberty  to  prove  that  there  was  fraud  in  the  sale  of  the  partner- 
ship interest,  a  matter  that  is  not  before  the  Court,  has  already 
been  tried,  is  on  appeal,  and  has  not  yet  been  examined  or 
decided  by  the  Appellate  Court — but  all  the  testimony,  all  the 
evidence  he  wished  to  offer  he  was  permitted  to  introduce  despite 
its  irrelevancy  and  that  such  a  proceeding  is  phenomenal  in  an 
Appellate  Court. 


{^Editorial  in    The  Evening  Post,  Dec.  20,  iSp^.l  21 

If  the  Courts  of  the  land  are  to  be  the  constant  target  of 
assault  by  ignorance,  cranky  prejudice  and  injustice  ;  if  they 
are  to  be  misrepresented  constantly  before  the  people,  reports  of 
their  proceedings  perverted  and  their  motives  impugned  without 
supporting  proofs,  the  day  of  the  downfall  of  the  judiciary  is  not 
far  off,  and  with  its  overthrow  will  go  the  liberties  of  the  people. 
The  courts  are  to  be  criticised  openly,  decently,  fearlessly  ;  but 
they  are  the  tribunals  of  the  people,  and  their  decrees  must  be 
respected,  their  right  to  be  free  from  intimidation,  threat  and 
assault  maintained,  or  else  they  must  be  abandoned,  and  when 
that  is  done,  with  them  will  go  free  government,  giving  place  to 
either  anarchy  or  autocracy. 


{EDITORIAL  IN  THE  EVENING  POST, 
DEC.  20,  1894.'] 


The  Supreme  Court  of  California  is  in  a  somewhat  embarrass- 
ing position.  In  the  matter  of  Philbrook's  contempt,  it  owes  a 
duty  to  itself  and  to  the  people  who  believ^e  that  the  dignity  of  the 
law,  whether  it  is  represented  by  a  Justice  of  the  Peace  or  a 
Justice  of  the  Supreme  Bench  should  be  upheld.  On  the  other 
hand,  it  feels  that  if  it  inflicted  the  proper  punishment  on  the 
erring  attorney  he  would  be  deprived  of  the  opportunity  of  earn- 
ing his  livelihood.  Mr.  Philbrook's  proper  course  would  have 
been  an  apology.  He  did  not  see  fit  to  make  it.  Now  the 
Supreme  Court  is  in  a  dilemma  ;  if  it  dpes  its  dut}^  it  will  disbar 
the  offender  and  leave  him  without  a  profession  ;  if  it  fails,  it 
will  encourage  men  to  go  before  it  with  threats  and  extort  decis- 
ions with  wordy  bludgeons. 


22  APPENDIX. 


[  THE  JUDGMENT  OF  DISBARMENT,  JAN.  5,  1895.  ] 


In    the    Matter   of  '\ 


IN  BANK. 

No.  21, iJ 


HORACE    W.     PHILBROOK.  j 

BY  THE  COURT. 

Horace  W.  Philbrook,  a  licensed  attorney,  having  filed  in  this 
Court  a  certain  brief  in  which  he  appeared  to  have  violated  his 
duty  as  an  attorney,  was  cited  to  appear  before  the  Court  on  the 
seventeenth  day  of  December,  A.  D,,  1894,  at  10  o'clock  a.  m., 
to  show  cause  why  he  should  not  be  removed  from  his  ofiice  as 
an  attorney  at  law,  and  debarred  from  further  practicing  law 
before  the  Courts  of  this  State.  The  citation  was  served  on  him 
ten  days  previous  to  said  December  17th.  On  said  day  he 
appeared,  and  as  he  did  not  ask  any  continuance,  but  announced 
himself  ready,  the  matter  was  proceeded  with.  A  committee 
from  the  Bar  Association  of  San  Francisco  requested  to  be 
allowed  to  appear  "  for  the  purpose  of  seeing  that  said  matter  is 
properly  presented ;  and  their  request  was  granted.  The 
Respondent,  Philbrook,  filed  a  written  answer  to  the  citation, 
and  he  was  allowed  to  make  an  oral  argument  in  his  own 
defense,  without  restriction  of  time,  his  argument  occupying  the 
greater  part  of  two  days.  The  Committee  of  the  Bar  Associa- 
tion argued  that  he  should  be  disbarred.  In  the  citation,  atten- 
tion was  called  to  certain  pages  of  the  brief  which  contained  the 
objectionable  matter  ;  and  a  part  of  it  was  quoted.  The  respond- 
ent did  not  offir  any  apology  or  make  any  excuse  ;  but  in  his 
written  answer,  and  in  his  oral  argument  he  boldly  contended 
that  his  brief  was  unobjectionable  and  contained  nothing  which 
he  had  not  the  right  to  put  there.  His  argument  was  for  the 
most  part,  a  reiteraiion  of  the  assertions  and  language  of  the 
brief. 

The  brief  in  question  was  filed  by  said  Philbrook  as  Attorney 
for  the  appellants  in  a  certain  action  now  pending  here  on  appeal, 


\The  Judgment  of  Disbarment,  Jan.  5,  189^. ^  23 

No.  15,857,  entitled,  "Rankin,  special  administrator  of  the  estate 
of  John  Levinson,  deceased,  plaintiff  and  appellant,  vs.  Wm.  J. 
Newman  and  Benjamin  Newman,  defendants  and  respondents." 
Levinson,  deceased,  had,  in  his  lifetime,  been  a  co-partner  with 
the  said  Newmans,  under  the  firm  name  of  Newman  &  Levinson; 
and  said  action  grew  out  of  a  difference  about  the  settlement  of 
the  business  and  affairs  of  the  partnership,  and  was  decided  by 
the  trial  Court  in  favor  of  the  Newmans.  A  motion  for  a  new 
trial  had  been  made  by  Philbrook's  client  in  the  trial  Court,  and 
had  been  there  denied  ;  and  the  appeal  was  taken  from  the 
order  denying  the  motion  for  a  new  trial.  This  appeal  has  not 
yet  been  argued  or  submitted  in  this  Court,  and  its  merits  are 
not  before  us  ;  although  the  transcript  in  the  case,  and  also  the 
transcripts  in  two  other  appeals  between  the  same  parties,  in 
which  the  Newmans  w^ere  also  successful  in  the  trial  Court,  are 
made  parts  of  the  said  Philbrook's  answer  in  this  present 
proceeding. 

The  objectionable  parts  of  the  said  brief  for  which  respondent, 
Philbrook,  was  cited  as  aforesaid,  consist  mainly :  ist.  Of 
offensive,  scandalous  and  contemptuous  language  concerning 
Hon.  Ralph  C.  Harrison,  one  of  the  Justices  t>f  this  Court  ;  and 
2d.  Of  language  contemptuous  of  all  the  other  Justices  of  the 
Court,  in  that  it  broadly  intimates  that  they  may  be  improperly 
influenced  in  deciding  said  appeal,  and  boldly  threatens  them 
with  evil  consequences  to  themselves  if  they  should  decide  the 
appeal  adversely  to  the  appellant.  It  also  contains  language 
highly  reprehensible  concerning  the  learned  Judge  of  the  Super- 
ior Court  who  heard  and  determined  said  action  at  nisi  prius, 
and  his  answer  contains  such  language  concerning  another 
learned  judge  of  the  Superior  Court  who  decided  the  other 
cases  mentioned  in  said  Philbrook's  answer. 

During  the  year,  A.  D.,  1890,  the  Hon.  Ralph  C.  Harrison, 
now  a  Justice  of  this  Court,  was,  and  for  many  years  prior 
thereto  had  been,  a  practising  lawyer  at  the  San  Francisco  bar; 
and  during  nearly  all  of  that  year  he  was  the  attorney  of  one 
Raveley,  executor  of  said  John  Levinson,  deceased,  above  men- 
tioned. On  the  6th  day  of  September  of  that  year  (1890)  a 
settlement  was  made  by  and  between  the  said  executor,  Raveley, 
and  the  surviving  partners,  the  said   Newmans,    at   which   two 


24  APPENDIX. 

certain  paper  writings  were  executed,  which  were  in  the  hand- 
writing of  Justice  Harrison,  and  signed  by  him  as  a  witness. 
There  were  articles  of  co-partnership  of  the  said  firm  of  New- 
man &  Levinson,  existing  and  in  force  at  the  time  of  the  death 
of  Levinson,  which  provided,  or  at  least  purported  to  provide, 
for  the  disposition  of  the  interest  in  the  firm  property  and  busi- 
ness of  either  partner  upon  his  death.  At  that  time,  and  prior 
thereto,  the  respondent  here,  Philbrook,  was  the  attorney  for 
certain  legatees  of  said  Levinson,  and  it  appears  that  Philbrook 
thought  that  the  estate  was  entitled  to  a  share  of  the  "good 
will"  of  the  said  firm,  while  Justice  Harrison  was  of  the  opinion 
that  under  the  said  articles  of  co-partnership  the  estate  of  Lev- 
inson had  no  interest  in  the  good  will,  but  was  entitled  only  to 
its  share  of  the  partnership  property,  to  be  ascertained  as  pro- 
vided in  said  articles.  It  is  clear  that  this  was  the  only  point  of 
difference  existing  at  the  time  of  said  settlement.  It  was  a 
pure  question  of  law,  as  to  which  it  was  the  duty  of  Justice 
Harrison  to  advise  his  client — the  executor — according  to  his 
best  judgment. 

But  it  happened  that  a  few  weeks  before  the  said  6th  of  Sep- 
tember, Justice  Harrison  had  been  nominated  by  one  of  the  two 
leading  and  nearly  equally  powerful  political  parties  of  the  State 
as  a  candidate  for  the  office  of  Associate  Justice  of  the  Supreriie 
Court;  and  upon  this  circumstance  respondent  Philbrook  has 
built  up  in  his  imagination  a  gigantic  conspiracy,  which,  he  con- 
tends, gives  him  the  right  under  the  claim  of  free  argument  to 
assail  Justice  Harrison  while  a  member  of  this  Court  by  every 
offensive  epithet  which  his  somewhat  wide  vocabulary  supplies, 
and  to  ascribe  to  him  the  vilest  motives  and  conduct.  He 
assumes  and  asserts  that  Justice  Harrison,  his  client  Raveley, 
the  Newmans,  and  their  attorneys,  Reinsteinand  Eisner,  entered 
into  a  conspiracy  to  do  a  wrong,  which  conspiracy  was  founded 
upon  the  consideration  that  the  former  had  been  nominated  as  a 
candidate  for  Justice  of  this  Court;  that  he  was  practically  sure 
of  election,  and  that  if  he  should  draw  up  said  paper  writings 
and  witness  them,  any  Superior  Judge  before  whom  any  litiga- 
tion concerning  the  matter  might  eome,  would  be  deterred  from 
doing  right  by  the  knowledge  that  one  of  the  conspirators  was  a 
Justice  of  the  Supreme  Court,   and  that  upon  appeal   the   other 


l^The  Judgment  of  Disbarment,  Jan.  5,  /c^'pj.]  25 

Justices  of  this  Court,  would  be  swerved  from  their  duty  because 
one  of  the  alleged  conspirators  would  be  associated  with  them  on 
the  bench.  And  it  is  contended  that  on  account  of  this  imagin- 
ary' state  of  factjfounded  on  no  evidence,  and  without  any  prob- 
able cause,  respondent  has  free  rein  to  indulge  in  whatever  insult- 
ing and  contemptuous  language  his  fancy  may  conjure  up  con- 
cerning a  Justice  of  this  Court. 

It  is  impracticable  to  here  reproduce  any  considerable  amount 
of  the  language  used  in  the  brief ;  but  a  few  specimens  will  be 
quoted.  Having  characterized  Justice  Harrison  as  one  of  the 
chief  conspirators,  he  denounces  what  he  calls  the  "  secret  trans- 
action of  September  6th,"  as  "this  most  impudent  and  unspeak- 
ably wicked  scheme."  Having  said  "There  they  all  were, 
Ralph  C.  Harrison,  Milton  S.  Eisner,  William  J.  Newman,  Ben- 
jamin Newman  and  Executor  Raveley,  secretly  assembled  solely 
by  reason  of  the  fact  that  Ralph  C.  Harrison  was  about  to  be- 
come a  Justice  of  the  Supreme  Court,"  etc.,  he  asks  :  "  Could  a 
more  villainous  deed  than  that  be  conceived  ?  ' '  He  speaks  of 
Justice  Harrison  and  the  others  as  "corrupt,  deprav^ed  and 
wicked  persons,"  and  of  the  former  as  '' particeps  criminis.'' 
And  again  he  says  :  "  It  was  done  criminally,  and  it  was  neces- 
sary to  the  scheme  that  Ralph  C.  Harrison  should  become  a 
Justice  of  the  Supreme  Court."  Again,  he  says  that  "every 
man  present  at  that  secret  transaction  of  Saturday,  September 
6,  1890,  knew  what  they  were  all  about ;  knew  that  he  was  a  par- 
ticipant in  one  of  the  foulest  and  blackest  of  crimes ;  that  he  was 
helping  plant  a  dagger  for  the  breast  of  Justice."  Again, 
speaking  of  that  transaction,  he  asks  :  "  Can  it  be  that  we  shall 
find  in  it  a  clew  to  the  secret  of  supreme  success,  the  very  crown 
of  success  in  the  practice  of  the  law?  "  And  again:  "Why 
expect  men  to  wear  themselves  out  with  the  intemperate  study 
of  law  books,  as  they  have  hitherto  been  written,  when  there  is 
open  the  easier,  surer  and  more  profitable  field  of  low  cunning 
by  which  helpless  women  and  fatherless  children  may  be  be- 
trayed, robbed  and  made  outlaws  by  one  single  stroke  ?  ' '  Again  : 
he  asks  how  far  matters  have  gone  "  when  so  vile  a  scheme  is 
contrived  to  pervert  the  Courts,  when  it  raises  its  head  openly, 
plants  its  vile  body  openly  in  the  very  temple  of  justice,  wears  no 
other  disguise  than  unblushing  audacity  and  brazen  impudence.  " 


26  APPENDIX. 

The  foregoing   quotations  give  a  fair  idea  of  the  character  of 
the  brief,  and  of  the  temper  and  animtis  which  inspired  it,  and 
in  all  that  respondent  has  presented  in  his  answer,  in  his  argu- 
ment, and  in  the  several  transcripts  which  he  made  parts  of  his 
answer,  he  has  been  unable  to  show  any  ground,  any  decent  pre- 
text for  the  outrageous  verbal  assaults  which  he  has  made  upon 
a  member  of  this  Court.     Nothing  appears  in  connection  with 
the   transaction   so   often   alluded  to  in  the  brief  which  places 
Justice  Harrison  in  any  other  light  than  that  of  an  upright  and 
honorable   lawyer,   faithfully  attending    to   the   interests  of  his 
client,  and  advising  him  according  to  his  best  judgment.     He 
also  gave  some  testimony  at  the  trial  ;  but  section  282  C.   C.  P. 
enjoins  upon  an  attorney  "to  abstain  from  all  offensive  person- 
ality, and  to  advance  no  fact  prejudicial  to  the  honor  or  reputa- 
tion of  a  party  or  witness  unless  required  by  the  justice  of  the 
cause  with  which  he  is  charged."     The  parts   of  the   brief  to 
which  w^e  have  alluded  are,  therefore,  contemptuous  and  unbear- 
able, and  entirely  unwarranted  under  any  claim  of  free  speech. 
We  appreciate  the  right  of  counsel  to  fullj^  argue  their  cases,  to 
comment   on   witnesses   whoever  they  may  be,  and  to   present 
views    and    press    arguments   within   any  reasonable  bounds  of 
propriety.     There  need   be   no   difficulty  in  this  Court  on  that 
subject.     It  would  be  hard,  no  doubt,  to  designate  a  line  that 
would  in  all  cases  properly  divide  free  speech  from  license.     But 
there  is  no  trouble  in  the  case  at  bar  on  that  score,  for  the  con- 
duct of  the  respondent  is,  beyond  doubt,  entirely  on  the  side  of 
unbridled  license.     Of  course,  the  fact  that  an  attorney  has  been 
elected  a  Justice  of  this  Court  does  not  shield  him  from  any  fair 
criticism  of  his  conduct  when  an   attorney  ;   but  when  there  is 
such  unwarrantable  language  as  that   used  by  respondent,  it  is 
manifest   that   it    was   used    because   the  person  assailed  was  a 
Justice  of  this  Court,  and   with  intent  to  commit  a  contempt  of 
this  Court.     As  respondent  has,  in  the  same  connection,  assailed 
not  only  all  the  members  of  this   Court   and    the   two  Superior 
Judges  above  referred  to,  but  also  certain  reputable  lawyers  who 
were  at    one  time  associated  with   him  in  the  litigation,  and  a 
special  administrator  who  was  appointed  at  his  own  instance  and 
out  of  his  own  office,  charity  might  possibly  suggest  that  he  is 
the   victim   of  abnormal  suspicion  and  distrust.     But  no  such 


\The  Judgment  of  Disbarment,  Jayi.  5,   /<$'p5.]  27 

defense  is  made  ;  and,  moreover,  his  brief  and  argument  show  a 
bright  intellect  and  a  clear  mind.  His  conduct,  therefore,  tx- 
hibits  only  a  sheer  intent  to  be  maliciously  contemptuous. 

With  respect  to  the  other  members  of  the  Court  the  language 
of  the  brief  is  not  only  generally  contemptuous,  but  contains  a 
direct  attempt  to  influence  them  by  threats  of  injury  unless  they 
shall  adopt  his  views  of  the  case.  He  says  in  his  brief:  "  And 
let  this  be  borne  in  mind  by  every  Justice  who  takes  part  in  the 
decision:  You  were  not,  any  more  than  I,  either  directly  or  indi- 
rectly a  party  to  the  secret  transaction  of  September  6,  1890, 
'and  we  that  have  free  souls,  it  touches  us  not.'  It  will  never 
be  in  any,  even  the  slightest  degree  your  act,  your  child,  nor 
will  you  in  even  the  slightest  degree  be  responsible  for  it,  unless 
yoic  adopt  it  as  your  own.  Though  it  is  a  lure  prepared  to  be 
held  out  to  you  as  a  lure,  it  touches  you  not  unless  you  accept  it.'' 
And  again,  having  said  that  it  is  not  enough  for  courts  to  be 
pure,  but  that  there  must  be  "the  fullest  confidence  in  their  pur- 
ity," he  says:  "But  if  this  secret  transaction  of  September  6, 
1890,  is  not  declared  illegal  and  void  upon  the  rules  and  princi- 
ples declared  in  Edgerton  vs.  Earl  Brownlow,  then  all  to  whom 
knowledge  of  the  case  may  come  will  no  longer  merely  suspect  or 
even  think  that  the  courts  may  be  corrupted,  they  will  know  it; 
they  may  point  to  the  decisioyi  here  as  full  proof  oi  it;  for  it  will 
be  established  that  such  practices  are  permissible,  and  if  per- 
missible they  are  sure  to  have  their  effect."  This  is  a  palpable 
attempt  to  influence  a  decision  of  this  Court  by  base  appeals  to 
the  supposed  timidity  of  its  Justices,  and  made,  too,  by  an  offi- 
cer of  the  Court.  It  is  intolerable.  It  cannot  be  suffered  bj^ 
any  occupant  of  the  bench  who  has  a  just  sense  of  his  duty  to 
the  people  to  preserve  the  due  dignity  of  their  courts  and  the  free 
course  of  justice.  An  attempt  to  influence  a  Judge  through  lear 
of  physical  injury  is  no  graver  offense  than  such  an  attempt 
against  his  reputation.  A  high-spirited  man  might  have  perfect 
physical  courage  and  yet  might  possibly,  despite  all  his  efforts 
against  it,  be  to  some  extent  insensibly  affected  by  dread  of  the 
loss  of  liis  reputation  and  good  name.  Neither  attempt  can  be 
for  a  momeat  countenanced  without  a  manifest  injury  to  the 
cause  of  justice.  When  people  come  into  courts  as  litigants  they 
have  the  right  to  expect  the  best  judgments  of  their  Judges,  un- 


28  APPENDIX. 

influenced  except  by  legitimate  arguments  made  openly  before 
them  by  counsel.  They  must  expect  those  errors  which  will 
sometimes  inevitably  be  committed  by  minds  which  are  not 
infallible,  but  they  should  be  able  to  feel  sure  that  the  impartial- 
ity of  the  Court  will  not  be  disturbed  b}^  any  influence  or  fear  or 
favor.  And  clearly  nothing  tends  more  to  disturb  that  impartial- 
ity than  a  menace  that  the  decision  of  a  cause  a  certain  way  will 
destroy  or  greatly  injure  the  good  name  of  the  Judge  who  shall 
make  it.  And  when  the  punishment  of  such  an  offense  is  clearly 
within  the  jurisdiction  of  the  Court,  as  in  the  case  of  one  of  its  own 
officers,  if  must  impose  the  penalty  or  neglect  its  imperative  duty. 

We  exceedingly  regret  the  necessity  of  this  proceeding.  It 
would  have  been  much  more  agreeable  for  us  to  have  devoted  the 
time  given  to  its  hearing  to  other  business.  But  to  have  over- 
looked it  would  have  been  to  violate  our  duty,  invite  future  dis- 
respect and  indignities,  and  establish  a  precedent  which  would 
have  embarrassed  the  Court  if  offenses  of  a  similar  character 
should  be  called  to  its  attention  in  the  future.  It  may  not  be 
out  of  place  to  say  that  we  have  been  lenient  to  the  respondent 
for  past  offenses  of  a  character  similar  to  the  one  now  before  us, 
though  not  so  flagrant;  and  that  his  attention  has  heretofore 
been  directly  called  to  his  disregard  of  his  duties  as  an  attorney 
in  this  respect.  In  a  petition  for  re-hearing  he  used  disrespect- 
ful language  towards  a  Commissioner  of  the  Court  who  had 
prepared  the  opinion  in  the  case,  for  which,  perhaps,  he  should 
have  been  called  to  account  at  the  time;  and  more  recently  we 
were  compelled  to  strike  out  his  brief  in  another  case  for  disre- 
spectful language.  And  even  now  we  regret  that  we  cannot 
see  some  escape  from  the  necessity  of  imposing  the  penalty 
which  seems  to  be  imperatively  demanded. 

Our  conclusion  is  that  by  filing  said  brief  the  respondent, 
Philbrook,  has  violated  his  duty  as  an  attorney  "to  maintain  the 
respect  due  to  the  courts  of  justice  and  judicial  officers,"  and 
"to  abstain  from  offensive  personality  and  to  advance  no  fact 
prejudicial  to  the  honor  or  reputation  of  a  party  or  witness, 
unless  required  by  the  justice  of  the  cause  with  which  he  is 
charged,"  as  declared  in  section  282  of  the  Code  of  Civil  Pro- 
cedure; and  that  for  such  reason  he  should  be  suspended  from 
his  office  of  attorney-at-law. 


\Coyicurre7ice  of  Deatty,   C.  J.,  Jan.  lo,  iSp^.']  29 

It  is  ordered  and  adjudged  that  the  said  respondent,  Horace 
W.  Philbrook.  be,  and  he  hereby  is,  suspended  from  his  office  as 
attorney  and  counselor-at-law,  and  prohibited  from  practicing  as 
an  attorney  and  counselor-at-law  in  any  and  all  of  the  courts  of 
this  State  for  the  period  of  three  (3)  years  from  this  date,  and 
thereafter  until  the  further  order  of  this  Court  removing  such 
suspension.  FITZGERALD,  J. 

McFARLAND,  J. 

GAROUTTE,  J. 

VAN  FLEET,  J. 

DE  HAVEN,  J. 


[  T//E  JUDGMENT  OF  DISBARMENT.     CONCUR- 
RENCE OF  B FATTY,   C.  /.,  JAN.  to,  1893.'] 


IN  BANK. 


In  the  Matter 

of  \   No.  21,188. 

HORACE  W.  PHILBROOK. 

My  views  of  this  case  differ  in  some  particulars  from  those  of 
my  associates. 

It  was  not  because  of  Mr.  Philbrook' s  assault  upon  a  member 
of  this  Court — gross  and  unjustifiable  as  I  deemed  it  to  be — that 
I  joined  in  the  order  citing  him  to  show  cause.  So  far  as  that 
part  of  his  offense  was  concerned  I  should  have  waited  until  the 
final  determination  of  the  appeal  in  Rankin  vs.  Newman,  before 
deciding  what,  if  any,  action  it  was  deemed  necessary  or  proper 
to  take. 

But,  as  is  clearly  shown  in  the  opinion  of  the  Court,  Mr.  Phil- 
brook  did  not  confine  himself  to  an  assault  upon  Justice  Harrison 


30  APPENDIX. 

in  his  character  of  attorney  for  Levinson's  executor,  and  as 
advisor  and  participant  in  the  settlement  of  the  executor  with 
the  surviving  partners.  He  went  much  further;  he  distinctly 
threatened  the  other  members  of  the  Court  with  public  infamy 
and  disgrace  if  they  did  not  decide  the  cause  of  Rankin  vs.  New- 
man in  his  favor.  This  he  did,  not  only  in  the  express  terms  of 
that  part  of  his  brief  set  forth  in  the  citation,  but  indirectly  and 
by  every  sort  of  implication  through  page  after  page  of  that  por- 
tion of  his  brief  to  which  his  attention  was  directed  by  the  refer- 
ences to  said  pages. 

In  his  long  and  carefully  prepared  answer  in  writing,  Mr. 
Philbrook  makes  no  retraction  or  qualification  of  his  objection- 
able language,  but,  on  the  contrary,  distinctly  re-avows  every- 
thing he  has  said. 

He  claims — and  I  fully  concede  the  claim — that  if  a  justice  of 
this  Court  had  been  a  party  or  attorney,  or  witness,  or  in  any  other 
manner  so  connected  with  a  cause  which  is  on  appeal  here  as 
justly  to  subject  him  to  criticism;  counsel  charged  with  the  pres- 
entation of  such  cause  must  be  allowed  the  same  freedom  of  crit- 
icism as  in  the  case  of  any  other  person.  But  the  logic  of  this 
proposition  is  that  the  fact  that  such  party  or  witness  is  a  mem- 
ber of  this  Court  is  wholly  irrelevant;  it  has  nothing  to  do  with 
the  case.  Mr.  Philbrook,  however,  does  not  hold  himself  bound 
by  the  logic  of  his  proposition.  He  does  not  criticise  Justice 
Harrison's  conduct  as  attorney  for  Levinson's  executor  the  same 
as  if  he  were  not  a  member  of  this  Court,  but  apparently  because 
he  is  a  member  of  the  Court  he  assails  him  with  the  bitterest 
invective,  for  the  purpose  of  giving  point  and  force  to  the  propo- 
sition to  which  his  whole  argument  tends,  that  we  cannot  affirm 
the  order  of  the  Superior  Court  without  making  ourselves  partici- 
pants of  the  fraud  which  he  charges,  and  thereby  giving  all  men 
reason  to  know  that  the  courts  of  the  country  are  corrupt. 

In  this  consists  the  offense  of  which,  in  my  opinion,  the  Court 
was  compelled  to  take  cognizance  on  its  own  motion — a  step  to 
which,  I  may  say,  we  resorted  with  great  reluctance.  The  law 
which  in  such  cases  makes  us  the  judges  of  offenses  against  the 
Court  places  us  in  an  extremely  delicate  and  invidious  position, 
but  it  leaves  us  no  alternative  except  to  allow  the  Court  and  the 
people  of  the  State,  iu  whose  name  and  by  whose   authority   it 


[Conairrerice  of  Beatty,   C.  /.,  Jan.   lo.   ^<^P5  ]  31 

acts,  to  be  insulted  with  impuiiit\',  or  to  exercise  the  authority 
conferred  by  law  for  the  purpose  of  compelling  attorneys  to 
"maintain  the  respect  due  to  courts  of  justice  and  judicial 
officers." 

If  an  attorney  were  to  approach  a  court  or  a  judge  with  the 
offer  of  a  bribe  to  decide  a  cause  in  his  favor,  or  if  he  were  to 
menace  a  judge  with  peisonal  violence  or  pecuniary  loss  if  he 
decided  against  him,  it  cannot  be  doubted  that  all  men  would 
concede  the  propriety  of  depriving  him  of  his  privileges  as  an 
attorney,  and  if  this  is  so  it  cannot  be  denied  that  some  penalty 
is  incurred  by  an  attorney  who  reinforces  his  argument  by 
announcing  to  the  Court  with  endless  repetition  that  an  adverse 
decision  will  make  the  judges  participants  of  a  fraud  and  sharers 
in  the  infamy  of  its  perpetrators. 

It  is  not  necessary >  however,  to  elaborate  this  proposition  here. 
It  is  plainly  enough  set  forth  in  the  opinion  of  the  Court  and 
does  not  even  need  exposition,  for  it  must  be  obvious  to  the  mean- 
est apprehension  that  threats  or  menaces  of  any  character 
addressed  to  a  Court  as  a  part  of,  or  in  aid  of,  the  argument  upon 
the  law  and  facts  of  a  case  is  an  obstruction  to  the  free  and 
unbiased  consideration  which  ev^ery  cause  should  receive;  and 
that  if  such  means  of  influencing  the  action  of  the  Court  should 
become  common,  as  they  might  if  allowed  to  pass  unrebuked,  no 
rights  would  remain  secure. 

Mr.  Philbrook  himself,  by  his  tardy  disclaimer,  made  in  the 
course  of  his  oral  argument,  seems  to  admit  the  justice  of  these 
views. 

But  as  above  stated  he  makes  ho  disclaimer  or  retraction  in 
his  written  answer  to  the  citation,  which  remains  a  public  record 
of  the  court.  On  the  contrary,  he  therein  deliberately  re- affirms 
and  insists  upon  the  propriety  of  every  word  contained  in  his 
brief.  He  claims,  of  course,  never  to  have  understood  until  his 
attention  w^as  called  to  it  by  a  brother  attorney  during  a  recess 
of  the  court  taken  just  before  the  close  of  his  argument,  that  he 
was  charged  with  having  menaced  the  judges  with  any  disagree- 
able consequences  to  themselves  in  case  of  an  adverse  decision. 
He  asks  us  to  believe  that,  with  one  of  the  most  offensive  pas- 
sages of  his  brief  set  before  his  eyes  in  the  terms  of  the  citation, 
and  with  ten  days  for  the  careful  reconsideration  which  he   says 


32  APPENDIX. 

in  his  answer  he  has  given  to  the  matter,  he  never  saw   what  is 
patent  to  the  observation  of  every  one  else. 

It  is  difficult  to  credit  Mr.  Philbrook  with  such  simplicity  of 
understanding,  but  it  may  be  true  that  he  has  become  so  blinded 
by  his  animosity  against  Justice  Harrison,  and  so  dominated  by 
the  belief  that  the  "  secret  transaction  of  Sept.  6,  1890,"  as  he 
terms  it,  was  a  gross  and  wicked  fraud,  that  he  has  lost  the 
capacity  of  regarding  any  other  aspect  of  the  case.  Indeed,  his 
conduct  during  the  hearing  of  the  citation  would  seem  to  indicate 
that  this  is  so.  For,  after  devoting  the  greater  part  of  two  days 
to  a  vindication  and  renewal  of  his  assault  upon  Justice  Harri- 
son, he  interrupted  the  course  of  his  argument  for  a  few  moments 
to  inform  the  Court  that  during  the  recess  a  brother  attorne)^  in 
whom  he  had  confidence  had  informed  him  that  to  some  minds 
the  language  of  his  brief  might  convey  the  idea  of  a  threat.  He, 
however,  professed  not  to  see  it  even  after  his  attention  had  been 
so  directed  to  the  matter,  but  offered,  if  the  Court  differed  with 
him,  to  cancel  the  offensive  passages  in  the  briefs  on  file,  and  in 
those  which  he  had  distributed  among  his  friends. 

In  my  opinion  this  retraction  was  wholly  insufficient.  Mr. 
Philbrook  had  not  only  been  informed  by  a  brother  attorney  of 
the  offensive  construction  which  might  be  put  upon  his  brief,  he 
had  been  notified  at  the  opening  of  the  proceedings  by  the  argu- 
ment of  Mr.  Hayne  that  such  was  the  construction  placed  upon 
it  by  the  Committee  of  the  Bar  Association,  and  he  was  plainly 
informed  from  the  bench  that  it  w^as  understood  in  the  same  way 
by  the  Court.  If,  in  spite  of  these  plain  intimations,  he  was  still 
unable  to  see  what  was  so  clearly  apparent  to  others,  it  ought  to 
have  occurred  to  him  that  he  would  do  well  to  take  further 
advice  of  those  in  whom  he  had  confidence  as  to  the  propriety  of 
modifying  his  written  answer,  and  of  introducing  into  that  per- 
manent record  a  plain  and  unequivocal  retraction  or  disavowal  of 
the  intention  to  threaten  the  Court.  That  he  has  never  done  so, 
nor  offered  to  do  so,  leaves  his  offense  entirely  unmitigated  in  my 
eyes,  and  imposes  upon  the  Court  the  necessity  of  inflicting  the 
due  penalt3^  As  to  the  character  of  the  penalty  I  concur  in  the 
view  of  the  Court  that  it  should  be  suspension  of  his  privileges 
as  an  attorney. 

Upon  the  other  branch  of  the  case  I   should  have  had  nothing 


{Concurrence  of  Beatty,   C.  /.,  Jan.  lo,   iSp^^J]  33 

to  say  if  Mr.  Philbrook  had  not,  by  devoting  himself  to  that 
exclusively  and  ignoring  everything  else,  challenged  the  judg- 
ment and  opinion  of  the  Court.  Under  the  circumstances  I  can- 
not pass  it  over  in  silence  without  seeming  to  dissent  from  the 
views  of  my  associates,  and  therefore  I  feel  bound  to  add  that, 
while  I  fully  concede  the  right  of  Mr.  Philbrook  to  attack  the 
settlement  between  Levinson's  executor  and  the  Newmans,  and 
to  argue  the  propositions  of  fact  and  of  law  upon  which  he 
arraigns  the  conduct  of  Justice  Harrison,  I  see  nothing  in  the 
case  to  justify  the  conclusion  that  the  advice  given  to  the  execu- 
tor as  to  the  construction  of  the  partnership  agreement,  and  his 
duty  to  settle  according  to  such  construction,  was  not  entirely 
proper  ? 

The  proposition  of  law  for  which  Mr.  Philbrook  contends,  viz  : 
that  notwithstanding  such  settlement  may  have  been  entirely  free 
from  fraud  ;  in  fact  it  must  be  held  fraudulent  in  law — a  con- 
structive fraud — because  advised  and  witnessed  by  a  gentleman 
who  was  then  a  candidate  for  the  Supreme  bench,  is  one  which  it 
is  open  for  him  to  argue,  and  since  it  is  involved  in  the  appeal 
of  Rankin  v.  Newman,  I  express  no  opinion  concerning  it. 

It  appears  from  Mr.  Philbrook's  own  showing  that  at  the  time 
of  the  settlement  neither  he  nor  his  clients,  the  mother  and 
sisters  of  I,evinson,  were  claiming  or  had  even  suggested  that 
the  articles  of  partnership  were  invalid.  On  the  contrary,  they 
were  then  and  ever  afterwards  asserting  their  validity  and  claim- 
ing under  them.  Nor  did  they  then  claim  or  suggest  that  the 
inventory  made  in  pursuance  of  the  said  articles  was  false  or 
incorrect  in  any  particular,  except  in  the  omission  of  the  item 
of  the  **good  will,"  the  whole  controversy  being  merely  as  to 
the  proper  construction  of  an  agreement  then  conceded  to  be 
valid  and  binding,  with  reference  to  the  single  question  whether 
or  not  it  embraced  or  excluded  the  "good  will."  As  to  this 
matter,  the  difference  between  them  was  open,  express,  and  well 
understood,  and  there  is  not  the  slightest  reason  to  suppose  that 
Judge  Harrison's  opinion  was  less  honest  or  less  sound  than  that 
of  Mr.  Philbrook.  Mr.  Philbrook,  indeed,  is  not  entirely  con- 
sistent with  himself  in  this  matter,  for,  unless  I  have  misappre- 
hended his  position,  he  is  now  claiming  that  the  Newmans,  by 
the  exercise  of  undue  influence,  induced  their  dying  and  par- 


34  APPENDIX. 

tially  demented  partner  to  execute  an  agreement  which  sacrificed 
his  interest  in  the  good  will;  and,  if  this  is  so,  it  is  scarcely  consist- 
ent to  claim  that  Judge  Harrison  misconstrued  it  or  that  he  can 
be  blamed  for  the  advice  given  to  the  executor  at  a  time  when 
neither  Mr.  Philbrook  nor  any  one  else  had  ever  suggested  fraud 
or  undue  influence  in  the  procurement  of  the  agreement. 

I  concur  in  the  judgment. 

BEATTY,  C.  J. 


[NEWS  ARTICLE  IN   THE  RECORD-UNION, 
JAN.  S,  iSpS-] 


A   LAWYER  PUNISHED. 


THE   PHILBROOK    CONTEMPT   CASE   DECISION. 


The  Full  Text  of  the  Supreme   Court's  Opinion.— The  Limits 
of  an  Attorney's  Privilege. 


Following  is  the  full  text  of  the  decision  of  the  Supreme 
Court  in  the  matter  of  the  proceedings  in  the  contempt  case 
against  Attorney  Horace  W.  Philbrook.  It  will  be  read  with 
interest  by  all  interested  in  upholding  the  dignity  of  the  Courts. 

(In  the  Supreme  Court.     In  Bank.     Filed  Januarj^  5,  1895.) 

[The  remander  of  the  article  is  a  full  copy  of  all  the  disbar- 
ment judgment,  except  the  concurring  opinion  of  Wm.  H.  Beatty, 
the  Chief  Justice.] 


]_Editorial  in  The  Record-Union,  Ja7i.  lo,  iSpj.'\  35 

lEDITORIAL  IN  THE  RECORD-UNION, 
JAN.  10,  i895.\ 


CATERING  TO  MORBID  TASTES. 


The  sensational  press  of  California  does  its  best  to  give  the 
State  a  continual  black  eye,  and  it  has  considerable  success.  If 
the  people  of  the  East  much  read  that  order  of  California  jour- 
nals they  must  conclude  that  ours  is  a  graceless  community,  an 
excellent  one  to  avoid. 

The  San  Francisco  press,  as  a  rule,  is  not  content  with  treat- 
ing of  ascertained  facts,  or  to  await  deliberative  and  orderly  in- 
vestigation. All  its  energy  is  expanded  in  magnifying  suspicions 
into  apparent  verities,  and  in  dignifying  as  important  every 
cranky  notion  that  enters  the  head  of  a  San  Francisco  Paul  Pry. 
As  we  have  often  remarked,  it  is  quite  enough  to  have  a  charge 
laid  at  any  door  to  have  to  insure  the  San  Francisco  press  .so 
treating  it  that  the  most  of  its  readers  will  be  disposed  to  accept 
the  charge  as  a  verdict  of  guilt — if  they  believe  what  they  read. 

The  Supreme  Court  has  seen  fit  to  suspend  one  of  its  attorneys 
for  gross  offenses.  Unquestionably  right  in  its  action,  undoubt- 
edly sustained  by  the  facts  which  were  clearly  explained  in  the 
opinion,  nevertheless  a  parcel  of  cranks  who  make  it  the  busi- 
ness of  their  lives  to  suspect  all  things  and  esteem  all  men  but 
themselves  dishonest,  rush  off  to  the  new  Mayor  of  San  Francisco 
and  demand  that  he  call  a  meeting  of  citizens  to  protest  against 
the  act  of  the  Supreme  Court  in  disbarring  Philbrook  **  because 
he  dared  to  point  out  what  he  considered  the  underhandedness 
of  one  of  the  Supreme  Court  Justices." 

This  indecent  appeal  to  public  passion  one  of  the  sensational 
press  so  presents  as  to  impress  the  readers  of  its  columns  with 
the  idea  that  there  is  something  in  it  beside  wind  and  anarchistic 
snarling  at  the  courts  of  law. 

Now  the  fact  is,  as  the  San  Francisco  press  knows,  though  not 
one  of  them  published  the  full  text  of  the  opinion  of  the  court, 
one  or  two  giving  rather  extended  synopses,  and  the  chief  sen- 
sational offender  treating  it,  in  a  few  inches  of  space,  cavalierly, 


36  APPENDIX. 

that  Philbrook  was  not  disbarred  alone  for  a  scandalous,  black- 
mailing and  wholly  unwarranted  assault  upon  a  member  of  the 
bench,  but  because  he  attempted  to  cow,  bulldoze  and  intimidate 
the  entire  court,  and  'which,  by  the  way,  was  an  offense  against 
the  liberties  of  the  people.  He  was  not  prevented  from  showing 
up  the  rascality  of  anybody ;  he  had  full  liberty  to  prove  all  he 
wanted  to,  and,  in  fact,  did  introduce  all  the  evidence  he  wished, 
and  after  assailing  seriously  Judges  Wallace  and  Coffey,  carried 
the  whole  of  the  testimony  on  which  he  relied  up  to  the  Supreme 
Court  in  voluminous  transcripts  on  appeal,  in  cases  not  yet  heard 
in  the  appellate  Court. 

He  was  punished  for  intolerable  and  repeated  insolence,  and 
for  threats  and  attempted  intimidation  of  the  courts,  of  which 
offending  he  has  been  notoriously  guilty  in  the  past,  says  the 
Court,  and  so  say  his  fellow  members  of  the  bar  in  San  Francisco. 
Really,  instead  of  calling  meetings  to  protest  in  behalf  of  Phil- 
brook,  the  people  ought  to  assemble  to  approve  the  Court  for 
punishing  one  of  its  own  officers  for  attempting  to  cow  and  in- 
timidate a  tribunal  of  the  people. 

The  San  Francisco  press  should  be  moved  by  a  noble  impulse 
to  stand  by  the  Court  in  such  a  case,  and  to  frown  down  sensa- 
tional attempts  to  stir  the  people  against  it — but  then  who  ever 
suspected  the  sensational  press  with  being  actuated  by  a  noble 
impulse  when  it  could  lend  its  columns  to  an  assault  upon  some 
one,  and  cater  to  the  morbid  taste  for  flash  head  lines. 


{NEWS  ARTICLE  IN  THE  RECORD- UNION, 
JAN,  14,  1895,1 


CHIEF  JUSTICE  BEATTY. 


HIS   VIEWS    ON   THK   PHILBROOK    CONTEMPT   CASE. 

He  Completely  Knocks  Out  the  Claim  of  Sympathy,  and  Shows 
Why  He  Should  Be  Punished. 

Chief  Justice   Beatty   has  filed  a  concurring   opinion   in   the 
Philbrook  contempt  case.     While  he  concurs  in  the  judgment  of 


\_News  Article  in   The  Record- Union ^  Jan.  14.,  iSg^.']       37 

three  years'  disbarment,  he  puts  it  on  grounds  somewhat  differ- 
ent from  those  stated  by  the  Associate  Justices,  and  in  doing  so 
he  completely  knocks  the  underpinning  from  beneath  the  men 
and  women  of  radical  socialistic  tendencies  who  sought  to 
arouse  public  sentiment  against  the  Court,  because,  as  they  put 
it,  "Philbrook  was  denied  opportunity  to  expose  the  under- 
handedness' '  of  the  attorney  who  has  since  become  a  member  of 
the  Supreme  Bench.     The  Chief  Justice  said: 

'*My  views  of  this  case  differ  in  some  particulars  from 
those  of  my  associates. 

"It  was  not  because  of  Mr.  Philbrook's  assault  upon  a 
member  of  this  Court — gross  and  unjustifiable  as  I  deemed 
it  to  be — that  I  joined  in  the  order  citing  him  coshow  cause. 
So  far  as  that  part  of  his  offense  was  concerned  I  should 
have  waited  until  the  final  determination  of  the  appeal  in 
Rankin  vs.  Newman,  before  deciding  what,  if  any,  action 
it  was  necessary  or  proper  to  take. 

"But,  as  is  clearly  shown  in  the  opinion  of  the  Court  (in 
re  Philbrook),  Mr.  Philbrook  did  not  confine  himself  to  an 
assault  upon  Justice  Harrison  in  his  character  of  attorney 
for  Le Vinson's  executor,  and  as  adviser  and  participant  in 
the  settlement  of  the  executor  with  the  surviving  partners. 
He  went  much  further;  he  distinctly  threatened  the  other 
members  of  the  court  with  public  infamy  and  disgrace  if 
thev  did  not  decide  the  cause  of  Rankin  vs.  Newman  in  his 
favor." 

Chief  Justice  Beatty  concedes  the  claim  that  if  a  Justice  of 
the  Court  had  been  a  party  or  an  attorney  or  witness,  or  in  any 
way  connected  with  a  case  on  appeal  in  such  manner  as  to  sub- 
ject him  to  just  criticism,  counsel  must  be  allowed  the  same  free- 
dom of  criticism  as  with  any  other  person.  The  fact  of  the 
party  being  a  member  of  the  Court,  said  the  Chief  Justice,  had 
absolutely  nothing  to  do  with  the  case.  The  vice  of  Philbrook's 
action  was  said  to  lie  in  the  fact  that  he  had  criticised  Justice 
Harrison,  apparently  for  no  reason  except  that  Harrison  was  a 
member  of  the  court.  Philbrook's  language  amounted  to  a 
threat  or  menace  against  the  entire  court,  which  could  not  be 
tolerated.  The  Chief  Justice  considered  that  if  such  language 
was  to  pass  unrebuked,  no  rights  would  be  secure.  The  opinion 
comments  further  on  the  fact  that  Philbrook  made  no  retraction, 


38  APPENDIX. 

but  on  the  hearing  reiterated  his  charges.      The   Chief  Justice 

said: 

*•  It  is  difficult  to  credit  Mr.  Philbrook  with  such  simplic- 
ity or  understanding,  but  it  may  be  true  that  he  has  become 
so  blinded  by  his  animosity  against  Justice  Harrison,  and  so 
dominated  by  the  belief  that  the  "secret  transaction  of  Sep- 
tember 6,  1890,"  as  he  terms  it,  was  a  gross  and  wicked 
fraud,  that  he  has  lost  the  capacity  of  regarding  any  other 
aspect  of  the  case.  Indeed,  his  conduct  during  the  hearing 
of  the  citation  would  seem  to  indicate  that  this  is  so.  For, 
after  devoting  the  greater  part  of  two  days  to  a  vindication 
and  renewal  of  his  assault  upon  Justice  Harrison,  he  inter- 
rupted the  course  of  his  argument  for  a  few  moments  to  in- 
form the  Court  that  during  the  recess  a  brother  attorney  in 
whom  he  had  confidence  had  informed  him  that  to  some 
minds  the  language  of  his  brief  might  convey  the  idea  of  a 
threat.  He,  however,  professed  not  to  see  it  even  after  his 
attention  had  been  so  directed  to  the  matter,  but  offered,  if 
the  Court  differed  with  him,  to  cancel  the  offensive  pass- 
ages in  the  briefs  on  file,  and  in  those  which  he  had  distri- 
buted among  his  friends. 

' '  In  my  opinion  this  retraction  was  wholly  insufficient. 
Mr.  Philbrook  had  not  only  been  informed  by  a  brother  at- 
torney of  the  offensive  construction  which  might  be  put 
upon  his  brief,  he  had  been  notified  at  the  opening  of  the 
proceedings  by  the  argument  of  Mr.  Hayne  that  such  was 
the  construction  placed  upon  it  by  the  legal  profession." 

Commenting  on  the  fact  that  Philbrook  made  no  retraction  on 
the  written  record,  the  Chief  Justice  said  : 

"  That  he  has  never  done  so,  nor  offi:?red  to  do  so,  leaves  his 
offense  entirely  unmitigated  in  my  eyes,  and  imposes  upon 
the  Court  the  necessity  of  inflicting  the  due  penalty.  As  to 
the  character  of  the  penalty,  I  concur  in  the  view  of  the 
Court  that  it  should  be  suspension  of  his  privileges  as  an. 
attorney. " 

The  opinion  concludes  : 

"  It  appears  from  Mr.  Philbrook'sown  showing  that  at  the 
time  of  the  settlement  neither  he  nor  his  clients,  the  mother 
and  sisters  of  Levinson,  were  claiming  or  had  ever  suggested 
that  the  articles  of  partnership  were  invalid.  On  the  con- 
trary, they  were  then  and  afterwards  asserting  their  validity 
and  claiming  under  them.  Nor  did  they  then  claim  or  sug- 
gest  that   the   inventory  made   in   pursuance   of  the   said 


\Editorial  iyi   The  Record-Union,  Jan.  7^,  iSg^.^  39 

articles  was  false  or  incorrect  in  any  particular,  except  in  the 
omission  of  the  item  of  the  'good-will,'  the  whole  contro- 
versy being  merely .  as  to  the  proper  construction  of  an 
agreement,  then  conceded  to  be  valid  and  binding,  with 
reference  to  the  single  question  whether  or  not  it  embraced 
or  excluded  the  'good-will.' 

"As  to  this  matter,  the  difference  between  them  was  open, 
express,  and  well  understood,  and  there  is  not  the  slightest 
reason  to  suppose  that  Judge  Harrison's  opinion  was  less 
honest  or  less  sound  than  that  of  Mr.  Philbrook.  Mr.  Phil- 
brook,  indeed,  is  not  entirely  consistent  with  himself  in  this 
matter,  for,  unless  I  have  misapprehended  his  position,  he  is 
now  claiming  that  the  Newmans,  by  the  exercise  of  undue 
influence,  induced  their  dying  and  partially  demented  part- 
ner to  execute  an  agreement  which  sacrificed  his  interest  in 
the  good-will  ;  and,  if  this  is  so,  it  is  scarcely  consistent  to 
claim  that  Judge  Harrison  misconstrued  it,  or  that  he  can  be 
blamed  for  the  advice  given  to  the  executor  at  a  time  when 
neither  Mr.  Philbrook  nor  any  one  else  had  ever  suggested 
fraud  or  undue  influence  in  the  procurement  of  the  agree- 
ment. 

"  I  concur  in  the  judgment." 


{EDITORIAL  IN  THE  RECORD-UNION,  JAN.  14.,  1895. '\ 


ENEMIES  OF   DECENCY  ROUTED. 


It  will  be  recalled  that  since  the  elaborate  opinion  of  the 
Supreme  Court  was  filed  and  published  in  leading  journals, 
clearly  showing  why  Philbrook  was  disbarred,  and  that  such 
disbarment  was  for  good  reason,  and  in  defense  of  the  sacred 
rights  of  freemen  to  have  their  courts  protected,  from  threat  and 
intimidation,  a  parcel  of  radical  socialists  and  chronic  agitators, 
who  lose  no  opportunity  to  snarl  at  courts,  the  law  and  Govern- 
ment, and   would  if  they  could  upturn  all  things  orderly,  went 


4Q  APPENDIX. 

before  the  Mayor  of  San  Francisco,  and  petitioned  him  to  call  a 
mass  meeting  to  denounce  the  Supreme  Court  for  disbarring 
Philbrook,  ''because  he  showed  up  the  undcrhandedness  of  one 
of  the  Justices." 

This  was  gross  misstatement,  willful  lying,  anarchistic  falsifi- 
cation, and  the  men  who  made  it  knew  it  to  be  so,  for  the  record 
was  before  them  showing  that  Philbrook  was  not  disbarred  for 
that  reason  ;  that  he  was  afforded  full  liberty  and  opportunity  to 
show  up  anything  he  wanted  to,  and  that  he  did  attempt  it,  and 
dismally  failed,  not  only  in  the  opinion  of  the  Supreme  Court, 
but  in  the  judgment  of  two  of  the  Superior  Court  departments 
where  he  had  his  case,  and  also  in  the  opinion  of  all  who  heard 
Philbrook  state  his  case  in  open  Court. 

Now  comes  Chief  Justice  Beatty  with  a  strong  concurring 
opinion,  which  we  publish  quite  fully  elsewhere  this  morning 
and  in  which  he  points  out  that  if  a  Justice  of  the  Supreme 
Court,  being  a  party  to  the  case  in  which  Philbrook' s  troubles 
arose,  had  acted  in  any  way  in  it  so  as  to  subject  him  to  criti- 
cism, Philbrook  had  the  full  right  to  criticism  him,  precisely  as 
he  might  any  other  person.  But,  as  the  Chief  Justice  adds, 
there  was  not,  and  is  not,  a  scintilla  of  evidence  showing  any 
such  connection  or  action.  But  Philbrook  has  become  so  domi- 
nated by  the  idea  that  his  view  of  the  matter  is  the  only  possible 
one  to  be  taken,  that,  as  the  Chief  Justice  well  says,  he  has  lost 
the  capacity  to  regard  the  case  in  any  other  aspect. 

The  Chief  Justice  holds  against  Philbrook  because  he  flatly 
refused  to  retract  insulting  and  intimidating  language  addressed 
to  the  entire  court;  even  after  being  told  that  the  Court, regarded 
his  language  as  threatening  he  refused  to  withdraw  it.  He 
threatened  the  Court,  says  the  Chief  Justice,  with  public  infamy, 
if  it  did  not  decide  as  he  dictated. 

Is  there  an  American  citizen  worthy  to  draw  a  breath  of  the 
air  of  freedom  who  dares  to  stand  forward  and  charge  the  Court 
with  error  or  wrongdoing  for  punishing  a  fellow  for  such  gross 
attempt  to  intimidate  and  browbeat  a  tribunal  of  the  country 
erected  by  the  people,  before  which  Americans'  rights  are  to  be 
adjudicated?  Can  it  be  that  there  is  a  human  being  so  lost  to 
reason  and  a  sense  of  common  decency  as  after  this  to  rail 
against  the  Court  for  doing  its  duty  to  the  people  in    this  case  ? 


[Editorial  iyi   The  Record-Unio7i,  Feb.  i8,  189^.']  41 

[THE  BILL  PASSED  BY  THE  LEGISLATURE. 

Introduced  Feb.  14,  1895;  finally  passed  March  14,  1895;  pocket- 
vetoed  by  the  Governor  without  assigning  any  reason.] 


AN  ACT  TO  PROMOTE  AND  SECURE  FREEDOM  OF 
SPEECH  IN  COURTS  OF  JUSTICE. 


The  People  of  the  State  of  California,  represented  in  Senate 
and  Assembly,  do  enact  as  follows: 

Section  i.  No  person  shall  be  deprived  of  the  right  to  prac- 
tice as  attorney  or  counsellor  in  any  court  of  this  State  because  of 
words  spoken  or  written  by  him  in  the  argument  of  any  cause 
pending  in  any  court,  unless  for  such  words  he  shall  have  been 
tried  by  jury  and  convicted  of  criminal  libel,  pursuant  to  the 
provisions  of  the  Penal  Code  of  the  State  of  California. 

Section  2.  Any  person  who  has  been  heretofore  admitted  to 
practice  as  an  attorney  and  counsellor  in  the  courts  of  this  State, 
and  who  has  been  disbarred  or  suspended  from  such  practice  by 
the  judgment  or  order  of  any  court  of  this  State,  without  trial 
by  jury,  for  words  spoken  or  written  by  him  in  the  argument  of 
any  cause  pending  in  such  court,  shall  be  entitled  to  practice  as 
attorney  and  counsellor  in  all  the  courts  of  this  State, 

Section  3.     This  Act  shall  take  effect  immediately. 


{EDITORIAL  IN  THE  RECORD-UNION,  FEB.  18,  1895.1 


A  SCANDALOUS  BILL. 


A  bill  has  been  introduced  in  the  Legislature  purporting  to  be 
an  Act  to  promote  freedom  of  speech  in  courts  of  justice.  It 
should  be  entitled:     "An  Act  to  muzzle  the  courts  of  justice  and 


42  APPENDIX. 

give  free  license  to  blackguards  to  unwind  their  tongues  in  abuse 
of  the  rights  of  the  people." 

The  bill  provides  that  no  one  shall  be  deprived  of  the  right  to 
practice  as  an  attorney  in  a  court  of  the  State  because  of  words 
spoken  or  written  by  him  in  argument,  unless  for  such  words  he 
shall  have  been  convicted  by  a  jury  of  a  criminal  libel.  The 
second  section  is  retroactive,  and  restores  to  the  roll  of  attorneys 
anyone  who  may  have  been  disbarred  or  suspended  for  contempt 
of  court. 

Of  such  is  the  modern  school  of  socialism.  Our  courts  are  to 
be  prohibited  from  exercising  the  right  to  preserve  order  before 
them,  and  from  holding  in  check  the  attorneys  of  the  Philbrook 
stripe.  That  is  to  say,  any  pettifogger  who  chooses  may  stand 
at  the  bar  and  lampoon,  libel,  abuse  and  villify  the  people's 
magistrates,  and  they  shall  not  check  or  restrain  them. 

Billingsgate  may  roll  in  oral  torrents  from  the  lips  of  scrub 
lawyers,  and  the  courts  must  sit  silent  and  endure  it.  Under 
such  a  practice  how  long  would  our  judicial  system  continue  to 
have  value  in  the  eyes  of  civilization.  If  the  courts,  which  alone 
can  admit  to  the  bar,  are  to  be  stripped  of  the  power  to  curb 
their  own  officers  and  compel  them  to  be  decent  and  respectful  to 
the  tribunals  of  the  people;  if  they  must  permit  whoever  chooses 
to  stand  at  the  bar  and  lampoon,  abuse  and  villify,  or  to  write 
into  the  records  of  the  court,  ^ccurrilous  and  contemptuous 
matter,  how  long  will  it  be  before  the  courts  will  become  beer 
gardens  and  their  dignity  decline  to  the  level  of  the  fish  market  ? 

Is  the  bill  in  question  engineered  by  the  man  Philbrook  whom 
the  Supreme  Court  recently  suspended  from  the  bar  for  three 
years  for  threatening  the  Court  and  attempting  to  coerce  it  ?  Is 
he  hanging  about  the  halls  of  legislation  now  for  the  purpose  of 
undoing  this  just  act  of  punishment  by  a  tribunal  that  the 
people  have  decided  shall  command  respect,  not  for  the  men  who 
composed  it,  but  for  the  sovereigns  who  created  it.. 

Is  he  the  same  man  who,  when  Deputy  Superintendent  of  In- 
struction of  San  Francisco,  under  Prof.  Anderson,  wrote  and 
sent  in  such  a  disrespectful  report  that  he  was  promptly  and 
justly  bounced  out  ?  Is  it  for  his  benefit  that  a  retroactive  law  is 
to  be  enacted  and  a  restoration  enforced  that  would  drive  every 
decent  man  from  the  California  bench,  and  turn  the  courts  over 


[Editorial  hi   The  Record- Union,  March  2^  1895^  43 

to   a   class   whose   highest  estimate  of  freedom  is  unrestrained 
license  to  do  as  they  pleased?     Vive  I'anarchie. 


{EDITORIAL  IN   THE  RECORD-UNION, 
MARCH  2,  1895 :\ 


The  Supreme  Court  of  this  State  has  been  at  it  again.  This 
body  of  jurists  must  have  a  bit  put  in  its  mouth ;  it  has  dared  to 
rebuke  another  attorney,  and  to  impose  a  fine  upon  an  appellant 
for  the  benefit  of  respondent,  for  prosecuting  a  frivolous  appeal. 
It  has  dared  to  interpose  the  dignity  of  the  State  between  the 
indecency  of  a  litigant  who  was  using  State  process  for  purposes 
of  delay  only,  and  the  right  of  the  people  to  have  litigation  dis- 
couraged and  their  tribunals  respected.  Attorney  Stephens 
having  been  sharply  rebuked,  and  Attorney  Philbrook,  who  has 
been  boxed  and  sent  to  do  penance,  can  now  clasp  hands  and 
"  buckle  to  "  in  the  effort  to  have  the  Legislature  declare  by  Act 
that  our  courts  shall  be  free  targets  for  cranks,  anarchists,  petti- 
foggers and  conscienceless  attorneys  to  throw  mud  upon.  It  is 
soberly  proposed  that  attorneys  may  lampoon  the  courts,  treat 
them  with  contempt,  write  into  court  records  the  most  scandalous 
matter,  abuse,  threaten  and  browbeat  Judges,  and  prosecute 
frivolous  appeals,  and  the  courts  must  stand  it ;  that  any  vulgar 
rascals  who  choose  to  assail  the  people's  tribunals  shall  go 
unwhipped,  unless  they  are  haled  before  a  jury  and  tried  and 
convicted  of  something  that  is  not  defined  by  the  statute  books 
as  a  crime,  nor  otherwise  outside  of  the  provisions  which  em- 
power the  courts  to  punish  for  contempt.  The  Philbrooks,  in 
their  contemptuous  acts,  receive  the  sympathy  and  the  applause 
of  the  anarchists,  radical  socialists  and  chronic  disturbers,  who 
are  of  the  same  kidney  as  the  crew  that  shouted  in  Haymarket 
Square,  "Down  with  the  law!"  "Vive  I'anarchie!"  They 
are  of  the  same  sort  that  met  in  San  Francisco  recently,  and 
passed  resolutions  denouncing  the  Supreme  Court  for  that  which 
every  citizen  who  has  the  honor  of  his  country  at  heart  applauds. 


44  APPENDIX. 

lEDITORIAL  IN  THE  RECORD-UNION, 
MARCH  4,  189s-'] 


The  infamous  ''Freedom  of  Speech"  bill  has  been  reported 
again  to  the  Senate  by  its  Judiciary  Committee  with  recommenda- 
tion that  it  do  pass.  Just  what  the  committee  means  by  this 
persistence  is  a  puzzle.  Here  is  a  bill  which  plainly  provides 
that  no  man  shall  be  debarred  from  appearance  in  a  court  as  an 
attorney-at-law  for  any  words  spoken  or  written  by  him  in  argu- 
ment in  any  cause  before  the  Court  until  he  shall  have  been  con- 
victed by  a  jury  of  criminal  libel.  And  this  bill  the  Senate 
Judiciary  Committee  gives  indorsement.  More  than  this,  the 
second  section  of  the  bill  restores  to  practice  any  attorney  who 
has  been  so  suspended  by  any  Court  in  the  past  for  contempt  by 
reason  of  words  spoken  or  written  in  any  cause.  The  bill  should 
be  entitled  "  An  Act  to  restore  H.  W.  Philbrook  to  practice  at  a 
bar  from  which  he  has  been  suspended  for  misconduct."  The 
bill,  if  it  becomes  a  law,  will  open  the  courts  to  the  attack  of 
every  shyster  in  the  land,  and  the  Judges  must  sit  silent  under 
their  abuse,  for  these  fellows  will  always  manage  to  keep  just 
without  the  bounds  of  criminal  libel.  For  instance,  a  contempt- 
uous attorney  may  threaten  a  court  that  if  it  does  not  decide  as 
he  dictates  he  will  bring  wrath  upon  it.  That  would  not  be 
libel,  but  would  be  "contemptuous,"  so  the  fellow  could  brow- 
beat and  abuse,  and  the  court  would  be  powerless  to  protect  itself 
from  insult.  The  bill  is  a  shame  and  a  disgrace.  That  such  a 
measure  should  ever  have  been  introduced  is  bad  enough,  but 
that  a  committee  of  lawyers  should  have  reported  it  favorably  is 
worse.  Fortunately  there  are  no  genuine  fears  entertained  that 
the  thing  will  pass,  or  if  it  does,  that  a  self-respecting  Governor 
will  approve  it. 


[Editorial  in   The  Record- U7iion,  March  ^,  iSp^.^  45 

lED^TORIAL  IN  THE  RECORD-UNION, 
MARCH  9,  iSps-'] 


THE  FREEDOM  OF  SPEECH  BIEE. 


The  Senate  has  passed  the  so-called  freedom  of  speech  bill.  It 
was  argued  that  it  does  not  prevent  a  court  from  fining  an  attor- 
ney for  contempt,  but  only  prevents  the  court  from  disbarring  an 
attorney  for  words  written  or  spoken  in  argument,  until  the 
offender  has  been  convicted  of  criminal  libel. 

But  suppose  the  contemptuous  words  are  not  libelous,  but 
vulgar,  insulting  and  threatening  ?  Shall  these  things  be  per- 
mitted in  our  courts,  and  the  tribunals  rendered  powerless  to 
check  them  except  by  fine  ?  Suppose  a  fine  is  imposed  and  the 
attorney  fails  to  pay,  he  cannot  be  prevented  from  practicing  in 
the  court;  that  is,  the  court  cannot  suspend  him  from  the  bar 
while  he  is  in  contempt. 

The  second  section  is  simply  and  flatly  intended  to  restore 
Horace  W.  Philbrook  to  practice  before  the  expiration  of  the 
three  years  of  his  suspension  expires.  And  for  this  the  Legisla- 
ture is  called  upon  to  slap  the  Supreme  Court  in  the  face,  and 
humiliate  it  before  the  people  for  doing  j  ust  what  its  dignity  and 
the  law  demanded  should  be  done. 

It  is  aihazing  that  a  legislative  house  should  pass  such  a  bill. 
It  indicates  the  drift  towards  anarchism  ;  it  is  as  much  a  shout 
"  stab  the  law  "  as  was  uttered  in  Haymarket  Square  in  Chicago  ; 
it  is  a  thing  over  which  all  the  communistic  and  anarchistic 
circles  will  glorify  if  it  becomes  a  law.  It  is  in  defiance  of  the 
powers  wisely  given  to  the  courts  for  their  protection  and  the 
protection  of  litigants  and  witnesses. 

The  Assembly  should  re;^use  to  concur  with  the  Senate  regard- 
ing this  bill.  It  is  as  vicious  and  mean  a  measure  as  was  ever 
aimed  at  law  and  the  courts. 


46  APPENDIX. 

^EDITORIAL  IN  THE  RECORD-UNION, 
MARCH  T4,  iSgs^'] 


THE  PHILBROOK  CASE. 


The  San  Francisco  Examiner,  true  to  its  instincts — which  are 
all  lawless,  as  was  demonstrated  last  summer — howls  that  the 
Philbrook  restoration  bill  shall  pass,  and  it  takes  occasion  to  say 
that  no  court  should  have  the  power  to  prevent  a  man  from  mak- 
ing a  living.  Unfortunately  for  the  Examiner's  position,  that  is 
precisely  what  courts  are  for,  when  citizens  forfeit  their  liberties 
by  ofifending.  The  lawyers  are  officers  of  the  courts,  and  it  is 
the  bounden  duty  of  the  courts  to  discipline  them.  They  have 
too  much  liberty  now — liberty  that  has  been  expanding  until  a 
good  many  people  had  rather  die  than  undergo  the  bulldozing 
and  abuse  that  lawyers  are  permitted  to  indulge  in.  Witness, 
for  instance,  the  disgraceful  procedure  in  a  criminal  trial  at 
Fresno  not  long  ago.  The  courts  ought  to  have  the  power  to 
punish  for  contempt,  and  especially  to  castigate  their  own  officers 
in  that  way.  Philbrook' s  offense  was  not  in  his  assault  upon 
Justice  Harrison;  that  could  be  overlooked,  but  he  went  beyond 
that  and  threatened  the  other  members  of  the  court  and  impuned 
\sic\  their  motives  in  advance  of  any  knowledge  on  his  part  how 
the  court  would  decide  his  case.  In  other  words,  he  attempted 
to  intimidate  the  court. 

Now,  it  must  occur  to  any  sensible  fair  mind  that  this  was 
more  an  assault  upon  the  people  than  upon  the  court.  The  court 
is  the  creation  of  the  people.  It  is  the  agency  of  the  judicial  sys- 
tem of  the  people.  An  assault  upon  it  is  the  grossest  of  assaults 
upon  liberty,  since  the  courts  constitute  the  bulwark  of  human 
freedom.  They  stand  between  the  citizen  and  the  agencies  that 
would  break  down  his  rights  and  destroy  his  independence. 

On  what  reasonable  grounds  any  man  can  base  support  of  the 
Philbrook  bill  we  have  in  vain  endeavored  to  discover.  Pass  the 
bill,  let  it  become  a  law,  and  any  lawyer  in  the  land  can  write 
into  his  pleadings  or  his  brief  threats,  abuse  and  scurrility  against 
the  bench,  and  the  judges  must  sit  and  take  it.  Does  any  citizen 
imagine  that  such  a  system  is  conservative  of  justice,  peace  or 
integrit}^  of  the  tribunals. 


\Editorial  in    The  Record- Union,  March  2j,   iSq^^         47 

[EDITORIAL  IN  THE  RECORD-UNION, 
MARCH  23.  1895.1 


REASON  PREVAILING  AT  LAST. 


For  several  weeks  prior  to  the  adjournment  of  the  Legislature 
The  Record-Union  called  attention,  day  after  day,  to  the  infa- 
mous Philbrook  bill.  We  pointed  out  how  it  would  demoralize 
the  courts  and  place  citizens  having  business  in  them  at  the 
mercy  of  conscienceless  men  and  scoundrels.  We  exerted  our- 
selves to  awaken  attention  concerning  this  bad  measure,  and  to 
show  that  the  bill  was  inimical  to  human  liberty,  and  tended  to 
break  down  the  chief  safeguards  of  freedom. 

Despite  the  presentation  of  the  facts  of  the  case,  the  press 
generally  was  either  silent  or  openly  pronounced  in  favor  of  the 
bill.  The  daily  papers  of  the' metropolis  were  especially  friendly 
to  it,  and  even  went  so  far  as  to  urge  its  adoption.  The  bill 
passed,  and  is  now  in  the  hands  of  the  Governor.  We  have  con- 
fidence that  he  will  give  it  its  death  blow.  He  cannot  afford  to 
stab  the  courts  of  the  land  by  giving  approval  to  so  revolution- 
ary and  dangerous  a  measure. 

Now  comes  one  of  the  leading  papers  of  San  Francisco,  after 
the  bill  has  passed,  and  a  Governor's  veto  alone  can  prevent  it 
becoming  law,  and  awakens  to  the  enormity  of  the  measure.  It 
says,  though  it  knew  all  about  the  bill  weeks  before  its  passage: 

"An  Act  has  succeeded  in  passing  both  branches  of  the 
Legislature  and  is  now  in  the  hands  of  the  Governor,  which 
provides  that  'no  person  shall  be  deprived  of  the  right  to 
practice  as  attorney  or  counselor  in  any  court  of  this  State, 
because  of  words  spoken  or  written  by  him  in  the  argument 
of  any  cause  pending  in  any  court,  unless  for  such  words 
.  he  shall  have  been  tried  by  jury  and  convicted  of  criminal 
libel  pursuant  to  the  provisions  of  the  Penal  Code  of  the 
State  of  California.'  It  is  known  as  the  'Philbrook  Bill,' 
because  that  is  the  name  of  its  reputed  author,  and  also 
because  it  provides  for  his  restoration  to  the  list  of  licensed 
attorneys,  despite  his  recent  disbarment  by  the  Supreme 
Court. 

"Without  any  reference  whatever  to  the  authorship  of  the 
bill,  or  to  the  clause  which  would  remove  its  author's  disa- 


48  APPENDIX. 

bilities,  it  is  evidently  a  blunder  of  legislation  in  its  present 
form.  The  glaring  and  gaping  defect  in  the  measure  is  this: 
That  it  forbids  the  disbarment  of  an  attorney  for  any  words 
whatever  spoken  in  court.  It  will  be  noticed  that  it  is  only 
after  a  trial  and  conviction  of  criminal  libel  that  an  attorney 
by  the  provisions  of  this  bill,  can  be  disbarred.  But  there 
is  no  such  thing  as  a  trial  or  a  conviction  for  spoken  words, 
for  the  reason  that  such  words  are  not  libel  at  all,  but  are 
merely  slander,  and  slander,  however  atrocious,  has  not 
been  a  crime.  It  will  be  seen  at  once  that  this  defect  is  all 
sufficient  to  work  the  undoing  of  the  Philbrook  bill." 

The  amazing  thing  about  it  is  that  none  of  the  press,  save 
that  of  this  city,  pointed  out  these  evils  and  dangers  before  the 
bill  passed.  The  Record-Union  and  its  local  contemporaries 
really  stood  alone  in  its  protest  against  the  measure.  They 
alone  directed  attention  to  the  fact  that  an  essential  to  the  integ- 
rity of  the  courts  is  the  power  to  discipline  the  officers  of  the 
court,  and  to  preserve  respect  for  its  decrees  by  the  exercise  of 
the  power  to  punish  for  contempt. 

The  Record- Ufiion  day  after  day  called  attention  to  the  fact  now 
dawning  on  the  press  of  San  Francisco  that  on  the  very  face  of 
it  the  bill  was  a  contradiction  because  it  requires  that  for  words 
spoken  in  court,  as  well  as  written,  one  shall  not  be  disciplined 
until  convicted  of  criminal  libel,  when  in  fact  no  one  can  be  tried 
and  convicted  of  criminal  libel  for  speaking.  Nevertheless  the 
Judiciary  Committees  of  both  houses  approved  the  bill.  We 
suspected  then,  as  we  do  now,  that  it  was  done  with  full  knowl- 
edge of  its  evils  and  with  a  view  to  having  the  bill  pass,  trusting 
to  the  Governor  to  veto  it  as  the  quickest  way  to  be  rid  of  that 
pertinacious  lobbyist,  H.  W.  Philbrook. 

These  committees  being  composed  of  lawyers,  must  be  familiar 
with  the  Penal  Code,  and  have  known  that  if  under  the  Phil- 
brook bill  one  should  stand  in  court  and  say  to  the  Judges,  as 
did  Philbrook  in  writing,  which  in  words  he  repeated  by  defend- 
ing his  screed,  *'You,  the  Court,  must  decide  the  case  as  I  wish, 
or  it  will  be  patent,  that  you  are  corrupt,  controlled  by  unworthy 
men  and  actuated  by  dishonest  motives"  that  in  such  a  case  the 
offender  would  go  scot  free,  because  the  law  of  libel  does  not 
include  the  speaking  contemptuously  of  the  courts,  nor  threats 
against  them,  nor  assaults  upon  their  integrity. 


[Editorial  in    The  Record- Union,  March  2^,  iSg^J]         49 

But  the  bill  is  bad  for  another  reason;  it  attempts  to  restore  to 
Philbrook  privileges  of  which  he  has  been  justly  deprived  by  a 
court  because  of  gross  offenses  against  a  tribunal  of  the  people, 
and  therefore  agaiwst  the  people  themselves.  When  will  the 
fanatics  who  shouted  for  freedom  under  the  banner  of  this  bill 
realize  that  every  assault  upon  the  courts  the  people  erect  is  an 
assault  upon  the  people  themselves  ?  The  courts  are  not  autocra- 
cies; they  are  not  independencies.  They  are  the  creatures  of  the 
system  of  free  government,  the  direct  product  of  the  free  will  of 
the  people.  What  they  do  the  people  are  responsible  for;  if  not, 
then  self-government  is  a  farce  and  a  cheat. 

For  these  reasons  one  of  the  most  suicidal  acts  of  which  the 
people  can  be  guilty  is  the  furthering  of  any  scheme  to  render 
the  courts  less  defensive  of  the  liberties  of  the  citizens.  These 
tribunals  of  the  land  check  the  rapacity  and  ignorance  of  legis- 
lation; they  are  the  bulwarks  around  about  the  constitutional 
reserves  of  the  people;  they  are  the  barriers  beyond  which  not 
even  the  Executive  can  pass.  They  render  assumption  of  power 
without  due  process  of  law  impossible;  they  mark  the  line  that 
divides  liberty  from  license,  and  assures  the  people  the  right  to 
govern  themselves.  They  stand  the  implacable  foes  of  all  en_ 
croachment  upon  constitutional  and  inalienable  guarantees,  by 
their  decrees  only  can  the  wrong-doer  be  compelled  to  right  the 
party  he  has  injured.  If  they  are  not  to  have  the  capacity  to 
punish  for  contempt,  they  will  be  deprived  of  the  power  to  en- 
force their  decrees  in  defense  of  human  rights.  If  they  may  not 
hold  the  bar  to  the  decency  of  good  breeding  and  the  rules  of 
action  that  ages  of  experience  have  determined  to  be  necessary 
for  the  decent  ordering  of  procedure  in  the  tribunals  of  men, 
they  may  as  well  close  their  doors  and  commit  to  lawyers  the 
right  to  browbeat,  abuse  and  lampoon,  threaten,  bulldoze  and 
cow  without  let  or  hindrance. 


50  APPENDIX. 

{EDITORIAL  IN  THE  RECORD-  UNION, 
MARCH  25,  iSps.] 


JUSTICE  TO  A  COMMITTEE. 

By  inadvertence  in  commenting  on  the  Philbrook  bill,  we 
spoke  of  the  Judiciary  Committees  of  the  Legislature  in"  the 
plural.  The  fact  is  that  the  Assembly  Judiciary  Committee  re- 
ported adversely  upon  the  infamous  measure.  The  bill  orig- 
inated in  the  Senate,  and  had  its  counterpart  in  Assembly  bill 
806.  On  the  19th  of  February  the  Assembly  Judiciary  Commit- 
tee unanimously  reported  that  the  bill  should  not  pass.  The 
bill  passed  the  Senate  on  March  yth,  and  reaching  the  Assembly 
was  substituted  for  the  Assembly  duplicate,  and  therefore  went 
upon  the  Senate  special  file  in  the  House. 

On  the  13th  of  March  the  bill  passed  the  Assembly  by  41  to 
27,  and  it  took  a  call  of  the  House  and  considerable  electioneer- 
ing on  the  part  of  the  proponents  of  the  bill  to  muster  the 
strength  necessary  to  pass  it.  On  the  final  passage,  Mr.  Bulla, 
Chairman  of  the  Assembly  Judiciary  Committee,  made  one  of 
the  strongest  speeches  of  his  life  against  the  vicious  measure, 
and  others  seconded  his  contention  that  it  was  dangerous  to  put 
such  a  law  upon  the  statute  book.  Mr.  Swisler  and  other  able 
men  were  prepared  to  speak  on  the  question  and  solicitous  to  do 
so,  but  the  previous  question  was  moved  by  the  friends  of  the 
bill,  and  under  the  gag  further  debate  was  cut  off. 

A  motion  to  reconsider  was  taken  up  on  the  14th,  but  the 
House  refused  to  recede  from  its  unwise  action.  Of  all  the  law- 
yers in  the  Assembly  only  five  voted  for  the  bill.  On  the  final 
passage,  it  was  vigorously  opposed,  but  ineffectually. 

It  will  be  seen,  therefore,  that  it  was  fought  by  its  opponents 
in  the  House.  In  the  Senate  it  passed  with  but  little  opposition, 
compared  to  the  efforts  made  in  the  Assembly  to  defeat  it.  It 
will  always  remain  a  puzzle  why  the  Senate  should  have  re- 
ceived from  its  Judiciary  Committee  a  favorable  report  on  this 
vicious  bill,  unless  we  accept  the  theory  that  the  Senators  on 
that  committee,  knowing  the  measure  to  be  a  bad  one,  concluded 


\The  Final  Decision,  Nov  5,  i8g6.'\  51 

to  report  in  favor  of  its  passage  in  order  to  be  rid  of  a  disagree- 
able and  persistent  lobbyist,  trusting  to  the  defeat  of  the  bill  in 
the  lower  house  or  its  veto  of  the  Governor. 

If  this  is  the  correct  theory,  then  there  is  reasonable  hope  that 
it  will  receive  the  disapproval  of  Governor  Budd,  himself  an  able 
lawyer,  who  will  not  fail  to  perceive  the  viciousness  of  the 
measure. 


\_THE  FINAL  DICISION,  FILED  NOV.  5.  1896. '\ 


IN  BANK. 


Ira  P.  Rankin,  Administrator  of  the  Estate  of 
John  Levinson,  Deceased,  Appellant,  !  ^ 

William  J.  Newman  et  al. ,  Respondents, 

William  J.  Newman,  Benjamin  Newman  and  the  deceased, 
John  Levinson,  were  partners  in  the  merchandise  business,  and 
held  interests  therein  in  proportion  to  the  amount  of  capital  in- 
vested by  each.  The  last  articles  of  co-partnership  between  these 
parties  were  entered  into  January  24,  1889.  And,  among  other 
things,  they  provided  in  detail  the  manner  in  which  an  inventory 
and  appraisement  of  the  partnership  business  should  be  taken 
annually,  which  inventory  and  appraisement  should  form  the 
basis  in  estimating  the  net  profit  going  to  each  partner. 
The  articles  further  provided  as  follows  : 

*'In  the  event  of  the  death  of  one  of  the  co-partners  the 
inventory  provided  for  herein  shall  be  taken  as  expeditiously 
as  possible,  and  without  unnecessary  delay  ;  the  surviving 
partners,  if  requested  so  to  do,  shall  admit  to  the  place  of 


52  APPENDIX. 

business  of  the  firm  at  least  one  person  selected,  designated 
and  empowered  by  the  heirs  or  legal  representatives  of  the 
deceased  partner  to  represent  the  interest  of  his  estate  in 
the  co-partnership.  Such  person  so  representing  the  inter- 
ests of  the  estate  of  the  deceased  partner  shall  have  accorded 
to  him  access  to  all  the  books,  papers  and  accounts  of  the 
firm,  and  may  at  his  election  remain  and  continue  at  the 
place  Qf  business  thereof  until  all  matters  relating  to  the  in- 
terests of  the  deceased  partner  shall  have  been  fairly  and 
satisfactorily  arranged  and  settled  and  adjusted,  and  the 
total  amount  due  to  the  estate  of  the  deceased  partner  shall 
have  been  ascertained  and  determined. 

"The  total  amount  ascertained  and  determined  to  be  due 
the  estate  of  the  deceased  partner  on  account  of  bis  interest 
in  the  co-partnership  shall  be  paid  to  the  heirs  or  legal  rep- 
resentatives of  the  deceased  partner  in  twelve  successive  and 
equal  monthly  installments,  commencing  within  one  month 
from  the  time  the  amount  due  has  been  ascertained  and  de- 
termined ;  for  the  amount  of  which  installments  the  surviv- 
ing partners  shall  execute  and  deliver  to  such  heirs  or  legal 
representatives  their  promissor}^  notes,  payable  as  aforesaid^ 
without  interest,  and  satisfactorily  secured  by  endorsement 
or  otherwise ;  provided,  however,  that  the  surviving  part- 
ners shall  have  the  option  to  continue  the  said  co-partner- 
ship ;  the  estate  of  the  deceased  partner  taking  the  place  of 
the  decedent  on  such  terms  and  conditions  as  may  be  agreed 
upon  between  the  surviving  partners  and  the  legal  repre- 
sentatives of  the  deceased  partner,  but  it  shall  not  be  obliga- 
tory upon  the  surviving  partners  so  to  do.     The  surviving 
partners  and  their  successors  »hall  also  have  the  right  and 
privilege  of  continuing  the  business  under  the  said  designa- 
tion and  name  of  Newman  &  lyevinson." 
Levinson  died  February  25,  1890,  and  forthwith  the  Newmans 
made  an  inventory  and  appraisement  of  the  partnership  business,, 
as  provided  by  the  articles  of  partnership,  by  which  inventory 
and  appraisement  it  was  determined  that  the  net  amount  of  Lev- 
inson 's  interest  in  the  assets  of  the  firm  was  the  sum  of  $20, 790. 88. 
For  this  amount  defendants  prepared  and  procured  to  be  properly 
endorsed  their  notes,  twelve  in  number,  for  thesum  of  $1,732. 57^, 
each  bearing   date   February   26,    1890,    payable   at  successive 
monthly   intervals   following   that  date,  and  within  one  month 
after  Levinson' s  death  tendered  them  to  Raveley,  the  executor  of 
the  will  of  said  deceased,  who  had  then  received  letters  testa- 
mentary from  the  Superior  Court.     In  July,  1890,  the  Newmans 


\^The  Fi7ial  Decision,  Nov.  5,   i8g6.'\  53 

filed  a  petition  in  the  court  alleging  that  they  were  ready  and 
willing  to  purchase  the  interest  of  the  deceased  in  the  partner- 
ship upon  the  terms  stated  in  the  articles,  and  had  requested  the 
executor  to  allow  them  to  do  so  ;  that  he  had  refused,  and  pray- 
ing an  order  directing  him  to  convej^  that  interest  to  them.  The 
Court  sustained  a  demurrer  to  such  petition,  on  the  ground  that 
it  had  no  jurisdiction  to  grant  the  order  prayed  for.  Thereafter, 
on  September  6,  1890,  Raveley,  the  executor,  being  of  the  opinion 
that  he  had  the  power  to  accept  the  terms  proposed  by  the  New- 
mans, received  the  said  notes,  and  on  that  day  executed  to  them 
two  certain  papers,  the  first  of  which  acknowledged  the  delivery 
of  the  notes  "in  pursuance  of  the  provisions  of  the  articles  of 
partnership  *  *  *  for  the  interest  of  the  estate  of  said  Lev- 
inson  in  said  partnership."  The  other  paper  set  out  the  transac- 
tion more  in  detail,  and  stated  that  the  amount  of  such  notes  was 
the  amount  ot  Levinson's  interest  in  the  assets  of  the  firm,  as 
determined  by  the  said  inventory  and  appraisement,  and  that  the 
notes  were  received  by  the  executor  *'in  full  payment  and  satis- 
faction of  the  amount  due  the  estate  of  John  Levinson,  deceased, 
for  the  interest  of  said  deceased  and  of  his  said  estate  in  the  co- 
partnership firm  as  the  same  has  been  ascertained,  as  above 
stated." 

Levinson's  residuary  legatees  were  his  mother  and  two  sisters, 
all  of  full  age.  They  in  writing  notified  the  Newmans  on  March 
5,  1890,  that  they  did  not  desire  to  employ  any  person  to  assist 
in  taking  the  inventory  of  the  assets  of  the  late  firm,  then  in 
progress,  and  the  estate  of  the  deceased  had  no  representative  in 
that  undertaking,  though  the  executor  was  often  about  the  place 
of  busmess,  and  both  he  and  the  legatees  knew  what  was  being 
done.  No  account  of  the  good-will  of  the  firm  was  taken  in  the 
inventory  made  by  the  defendants,  nor  was  it  in  the  inventory 
and  appraisement  of  the  estate  returned  to  the  Court  by  the  ex- 
ecutor. In  the  inventory  and  appraisement  returned  by  the 
executor  the  value  of  the  interest  of  Levinson  in  the  partnership 
assets  was  stated  at  the  same  sum  as  that  fixed  by  the  appraise- 
ment of  the  defendants,  to  wit,  $20,790.88,  and  was  adopted  by 
the  appraisers  on  the  strength  of  that  appraisement.  The  omis- 
sion to  value  the  good-will  as  part  of  the  estate  by  the  executor 
was  resented  by  the  legatees,  and  on  this  ground  they  petitioned 


54  APPENDIX. 

the  Court  to  remove  Raveley  from  his  office  of  executor.  He 
thereupon  resigned,  his  accounts  were  settled,  successive  admin- 
istrators with  the  will  annexed  carried  on  the  administration 
until  finally  H.  W.  Philbrook  was  appointed,  and  he  has  been 
substituted  as  plaintiff  of  record  herein.  This  action  is  essen- 
tially one  in  equity  sounding  largely  in  fraud,  and  asking  for  an 
accounting  of  the  partnership  affairs.  The  case  has  been  before 
us  in  the  past  upon  an  appeal  from  the  judgment  (107  Cal., 
602),  where  may  be  found  an  outline  of  the  purposes  of  the 
action  and  the  general  framework  of  the  pleadings. 

Fraud  is  charged  in  the  body  of  plaintiff's  bill,  and  upon  that 
ground  relief  in  a  great  measure  is  sought.  But  in  the  opinion 
of  the  trial  Judge,  Hon.  W.  T.  Wallace,  which  opinion  is  set 
forth  in  the  record,  it  is  stated  that  there  is  no  evidence  what- 
ever to  support  such  a  charge.  And,  after  a  careful  examina- 
tion of  the  evidence,  we  find  nothing  therein  even  tending  to 
show  the  practice  of  any  fraud  upoQ  the  heirs  and  legatees  of  the 
dead  partner.  It  follows  that  all  question  of  fraud  is  out  of  the 
case,  and  the  only  important  question  remaining  is  :  had  the 
executor  under  the  articles  of  co-partnership  the  right  to  con- 
summate the  transfer  of  the  deceased  partner's  interest  in  the 
business  to  the  surviving  partners  for  the  consideration  specified 
in  said  articles  ?  Although  this  interrogatory  presents  a  clear- 
cut  proposition  of  law,  still  it  is  well  to  say  that,  if  this  transfer 
of  the  partnership  interest  should  be  set  aside,  as  is  here  sought 
by  appellant,  and  all  parties  be  placed  in  statu  quo,  as  of  the  day 
the  transaction  was  had,  no  substantial  results  favorable  to  appel- 
lant's interests  would  ensue.  It  would  be  a  valueless  victory,  for, 
as  said  by  the  trial  Judge,  upon  an  accounting  the  sum  realized 
by  the  legatees  would  fall  far  short  of  the  amount  actually  paid 
by  the  surviving  partners  to  them. 

In  appellant's  brief  the  law  is  conceded  to  be  :  "  Where  the 
co-partners  in  the  partnership  contract — articles  of  partnership — 
do  actually  contract  that  on  the  death  of  a  partner  the  partner- 
ship property  and  business  belongs  to  the  survivor  or  survivors,, 
fixing  the  price  at  which  it  is  to  be  taken  by  the  survivor 
or  survivors,  such  contract  is  binding  according  to  its 
terms."  Upon  such  concession  we  are  brought  face  to 
face  with  the  articles  of  co-partnership  for  the  purpose  of  weigh- 


\^rhe  Final  Decision,  Nov.  5,  i8p6.']  55 

ing  and  testing  them  by  the  formula  furnished  by  appellant  ; 
and  at  the  threshold  of  the  investigation  we  are  met  by  the  objec- 
tion that,  at  the  date  when  those  articles  were  entered  into,  the 
deceased  partner,  Levinson,  was  incapable  by  reason  of  mental 
incapacity  of  entering  into  any  contract  whatever.  The 
mental  incapacity  of  Levinson  at  the  time  was  not  even  sug- 
gested in  plaintiffs  bill,  and  his  mental  status  does  not  appear  to 
be  an  element  of  the  case  that  attracted  serious  attention  at  the 
trial.  But  some  evidence  came  before  the  Court  upon  the  ques- 
tion without  objection,  which,  even  in  the  absence  of  direct 
issues  raised  by  the  pleadings,  should  be  considered  as  bear- 
ing upon  the  question.  Crowley  vs.  The  City  R.  R.  Co.,  60 
Cal.,  626.  There  are  various  good  reasons  why  this  evidence 
should  not  be  held  sufficient  to  invalidate  the  articles  of  co-part- 
nership, and  as  an  all-sufficient  reason  we  suggest  that  the  im- 
plied finding  of  the  Court  was  against  any  such  contention. 
Appellant's  principal  witness  to  the  point  testified  that  if  Levin- 
son had  read  the  articles  of  co-partjiership  he  would  have  under- 
stood them,  and  there  is  no  evidence  in  the  record  that  he  did 
not  read  them.  As  a  salient  circumstance  bearing  upon  Levin- 
son's  mental  capacity  at  that  particular  time,  it  may  be  noticed 
that  some  few  days  thereafter  he  executed  his  last  will  and  tes- 
tament, the  will  under  which  this  administrator  is  now  acting  in 
prosecuting  this  litigation.  It  further  appears  that,  upon  his 
return  from  Europe  after  the  execution  of  these  articles,  for  sev- 
eral months  and  up  to  the  time  of  his  death  he  gave  his  per- 
sonal attention  to  the  business  of  the  firm  as  he  had  always  done 
in  the  past.     We  are  satisfied  there  is  nothing  in  the  point. 

We  have  quoted  in  detail  that  portion  of  the  partnership  con- 
tract which  declares  what  shall  be  done  with  the  business  in  case 
of  the  death  of  one  of  the  partners.  In  this  respect  the  provision 
of  the  contract  is  not  well  drawn.  It  is  not  clear,  but,  upon  the 
contrary,  somewhat  vague  and  indefinite.  At  the  same  time, 
when  carefully  read  and  considered,  but  one  conclusion  can  be 
arrived  at  ;  and  that  is  that,  upon  the  death  of  one  of  the  part- 
ners, the  surviving  members  of  the  firm  had  at  least  the  privi- 
lege and  option  of  buying  the  interest  of  the  deceased  partner  in 
the  business  upon  certain  terms.  It  is  claimed  upon  the  part  of 
the  Newmans  that  under  the  contract  they  were  bound  to  do  so. 


56  APPENDIX. 

But  to  support  the  validity  of  the  contract  in  this  regard  they  are 
not  compelled  to  go  to  such  length  ;  for,  if  they  have  an  option 
by  the  articles  of  co-partnership  to  purchase  upon  stated  terms, 
then  they  had  the  undoubted  right  to  exercise  that  option  and 
take  the  interest  of  the  deceased  partner,  if  they  were  so  dis- 
posed. Harbster's  Appeal,  125  Pa.  St.,  3.  In  that  case  it  is 
said  :  "It  requires  no  argument  to  show  that  the  interest  of  the 
deceased  partner  ended  when  the  firm  gave  notice  that  they 
would  take  it  in  accordance  with  the  terms  of  the  agreement." 
And  in  the  case  at  bar,  if  the  Newmans  simply  held  an  option  to 
purchase  the  interest,  there  can  be  no  question  but  that  they 
exercised  that  option  in  favor  of  purchasing.  It  should  be  held 
that  the  co-partnership  articles  did  not  give  the  surviving  part- 
ners a  right  to  purchase,  then  the  presence  of  all  that  portion  of 
the  contract  providing  for  the  mode  and  manner  of  payment  by 
the  Newmans  for  the  deceased  partner's  interest  would  be 
inexplicable.  It  is  provided  in  great  detail  that  they  should 
give  their  equal  monthly  installment  notes,  running  over  a  pe- 
riod of  twelve  months,  in  payment  of  the  interest  of  the  deceased 
partner.  Such  provision  beyond  question  contemplated  a  sale, 
and  that  a  sale  to  the  surviving  partners  in  case  of  the  death  of 
one  of  the  firm  was  in  the  minds  of  all  parties  when  the  con- 
tract was  made,  does  not  admit  of  doubt.  There  can  be  no  other 
reasonable  construction  of  the  instruction. 

It  is  insisted  that  the  language  here  used  provides  no  fixed  and 
definite  amount  of  money  to  be  paid  by  the  surviving  partner  for 
the  interest  of  the  deceased  partner,  and  it  is  claimed  that  for 
such  reason  there  is  no  contract,  at  least  no  contract  suflSciently 
clear  and  explicit  to  be  capable  of  enforcement.  There  is  no  case 
cited  by  appellant  that  goes  to  the  lengths  here  insisted  upon. 
But,  upon  the  contrary,  that  is  certain  which  may  be  made  cer- 
tain, and  many  of  the  cases  bearing  upon  this  question  rest  upon 
this  principle.  Num.berless  cases  might  be  cited  where  courts 
have  recognized  the  right  of  the  partners  to  stipulate  in  the 
co-partnership  articles  that  the  purchase  price  for  the  interest  of 
a  deceased  partner  shall  be  fixed  by  an  inventory  and  appraise- 
ment to  be.  taken  after  the  death  of  such  partner.  In  the  very 
nature  of  things,  a  fair  purchase  price  of  an  interest  in  the  firm 
at  an  indefitiite  future  time  would  be  incapable  of  ascertainment. 


\_The  Fhial  Decision,  Nov.  5,   i8g6.'\  57 

To  fix  the  amount  in  advance  would  be  simply  a  speculative 
gamble  upon  the  part  of  all  parties  concerned,  and  hardly  justifi- 
able either  in  morals  or  law. 

It  is  further  contended  that  there  is  no  mode  whatever  provided 
in  the  articles  by  which  to  ascertain  the  value  of  the  interest  of 
the  deceased  partner;  and  it  may  well  be  conceded  that  the  pro- 
visions of  the  contract  in  this  regard  are  not  what  they  should 
be.  In  this  particular  the  instrument  is  unhappily  drawn,  and 
well  serves  the  purpose  of  being  an  invitation  for  litigation.  As 
we  have  already  seen,  the  articles  provide  far  an  annual  inventory 
and  appraisement  in  order  that  the  actual  financial  status  of  the 
concern  may  be  determined.  This  inventory  and  appraisement 
was  provided  for  in  order  that  the  annual  profit  or  loss  of  each 
partner  might  be  known.  A  succeeding  subdivision  of  the  con- 
tract,, which  we  have  heretofore  quoted  in  full,  then  in  part 
declares:  "In  the  event  of  the  death  of  one  of  the  co-partners, 
the  inventory  provided  for  herein  shall  be  taken  as  expeditiously 
as  possible,  and  without  unnecessary  delay.  The  surviving 
partners,  if  requested  so  to  do,  shall  admit  to  the  place  of  busi- 
ness of  the  firm  at  least  one  person  selected  *  *  *  by  the  heirs 
or  legal  representatives  of  the  deceased  partner,  to  represent  the 
interest  of  his  estate  in  the  co-partnership  ^  *  ^  and  may  at  his 
election  remain  and  continue  at  the  place  of  business  thereof 
until  all  matters  relating  to  the  interest  of  the  deceased  partner 
and  his  estate  shall  have  been  fairly  and  satisfactorily  arranged 
and  settled  and  adjusted,  and  the  total  amount  due  to  the  estate 
of  the  deceased  partner  shall  have  been  so  determined.  The 
total  amount  ascertained  and  determined  to  be  due  the  estate  of 
the  deceased  partner,  on  account  of  his  interest  in  the  co-partner- 
ship, shall  be  paid  to  the  heirs  or  legal  representatives  of  the 
deceased  partner,  in  twelve  successive  and  equal  monthl}^  install- 
ments." If  the  language  of  the  contract  had  included  the  words 
"and  appraisement"  after  the  word  "inventory,"  there  would 
have  been  no  question  of  indefiniteness,  and  no  possible  technical 
objection  as  to  the  matter  of  construction.  But  the  absence  of 
those  two  words  should  not  nullify  the  contract.  It  would  be 
carrying  the  doctrine  of  technicality  too  far,  if  we  should  so 
hold.  The  true  intent  of  the  parties  is  plainly  apparent  from 
the  language  used.     And  that  intent  was  that  an  inventory  and 


58  APPENDIX. 

appraisement,  as  provided  for  in  the  articles,  should  furnish  the 
basis  for  fixing  the  purchase  price  of  the  deceased  partner's 
interest.  Such  is  the  fair  construction  of  the  language,  taking 
it  altogether,  and,  indeed,  the  only  construction  which  can  be 
given  it.  To  say  that  the  parties  to  the  contract,  while  provid- 
ing for  a  sale,  and  also  providing  for  the  manner  and  time  for 
pa3^ment,  never  intended  to  provide  as  to  the  amount  which 
should  be  paid,  or  to  fix  any  mode  b}'  which  the  amount  could 
be  determined,  would  be  going  to  lengths  entirely  unauthorized 
by  the  instrument  itself.  We  hold  that  the  mode  and  manner  of 
fixing  the  amount  of  the  purchase  price  is  found  within  the 
language  of  the  instrument  itself,  and  that  mode  and  manner  is 
the  inventory  and  appraisement  provided  for  in  a  previous  por- 
tion of  the  contract. 

Conceding  that  the  inventory  and  appraisement  mentioned  in 
the  articles  of  co-partnership  were  intended  by  the  partners  to  be 
used  as  the  basis  for  fixing  the  value  of  a  deceased  partner's 
interest,  then  appellant  contends  that  the  contract  was  void  as 
placing  it  in  the  power  of  the  surviving  partners  to  fix  their  own 
purchase  price.  There  is  no  force  in  this  contention.  The  con- 
tract contemplates  the  presence  of  a  representative  of  the  deceased 
partner  during  all  these  times,  and  incidentally  it  may  be  sug- 
gested that  the  executor  was  present  during  the  time  more  or 
less,  and  that  both  he  and  the  legatees  had  full  knowledge  of 
what  was  being  done,  and  ample  opportunity  to  be  present  at  all 
times  and  upon  all  occasions  to  assist  either  personally  or  by 
agent.  Again,  as  to  the  store  and  office  fixtures,  the  value  is 
fixed  at  a  certain  and  definite  amount.  As  to  the  stock  of  mer- 
chandise on  hand,  it  is  to  be  appraised  at  its  actual  value,  but 
not  to  exceed  its  original  cost.  All  solvent  debts  are  to  be  taken 
at  their  face  value.  We  see  nothing  so  indefinite  in  these  facts 
as  to  nullify  the  contract.  The  actual  value  of  a  piece  of  mer- 
chandise can  be  determined;  and  likewise  it  can  be  determined 
what  is  and  what  is  not  a  solvent  account.  They  are  matters 
capable  of  ascertainment,  and  every  partnership  in  the  country 
is"  constantly  engaged  in  determining  them.  There  is  certainly 
nothing  so  indefinite  and  uncertain  as  to  the  valuation  to  be  fixed 
upon  these  assets  as  to  in  any  way  render  the  contract  nugatory. 
In  Habstei's  Appeal,  cited  by  appellant,  the  purchase  price  was 


\The  Final  Decision^  Nov.  5,  i8g6.'\  591 

fixed  at  the  previous  annual  appraisement,  with  the  proportion 
of  profit  or  loss  for  the  present  year  added  or  deducted,  as  the 
case  might  be.  It  certainly  in  that  case  was  no  easier  to  fix  the 
amount  of  the  profit  or  loss  than  it  was  in  this  case  to  fix 
the  actual  value  of  the  stock,  or  determine  what  debt  was  a 
solvent  account.  Indeed,  both  of  those  factors  of  the  business 
were  necessary  elements  to  be  determined  before  the  profit  or  loss 
could  be  fixed.  In  another  of  appellant's  cases,  Blake  vs.  Barnes, 
26  Abb.  (N.  C),  208,  the  purchase  price  by  the  surviving  part- 
ners upon  the  death  of  a  member  of  the  firm  was  to  be  deter- 
mined by  an  inventory  and  appraisement  to  be  made  as  follows  r 
'' b.  Accounts  overdue  at  a  fair  estimate,  to  be  determined,  if 
necessary,  by  arbitration,  c.  Rejected  machinery,  or  any  other 
property  or  merchandise  for  which  the  firm  is  not  willing  to 
allow  the  valuation  inventoried,  or  hereinbefore  provided  for,  at 
the  price  offered  by  the  highest  bidder,  d.  For  the  stereo  and 
electrotype  plates,  engravings  *  H«  *  a  sum  equal  to  the 
gross  profits  of  the  firm  for  the  last  two  complete  business  years 
preceding  the  time  of  settlement."  It  was  not  suggested  that 
such  a  character  of  valuation  avoided  the  contract,  although  the 
case  was  bitterly  contested  on  other  grounds.  The  case  of  Sim- 
mons vs.  Leonard,  3  Hare's  Chan.,  581,  goes  away  beyond  the 
cases  just  cited.  It  was  there  provided  that  the  surviving  part- 
ners should  take  the  interest  of  the  deceased  partner  at  a  valua- 
tion shown  by  the  last  annual  accounting,  the  articles  having 
provided  for  annual  accounts.  A  partner  died,  and  no  annual 
accounts  had  been  taken.  The  representative  of  the  deceased 
partner,  as  in  this  case,  contended  that  there  could  be  no  sale, 
as  the  purchase  price  was  not  fixed.  The  vice-chancellor  said  : 
"The  rule  which  justice  and  common  sense  would  apply  in  such 
a  case  is,  I  think,  too  clear  for  serious  argument.  The  provisa 
for  sale  in  one  event,  that  of  the  term  running  out,  and  the  pro- 
viso for  paying  off  a  deceased  partner's  share  (dying  during  the 
term)  by  installments,  is  conclusive  evidence  of  an  intention  and 
agreement  that  the  death  of  a  partner  during  the  term  should 
not  work  a  dissolution  of  the  whole  partnership,  but  that  the 
survivors  should  have  a  right  to  carry  it  on  with  the  accomoda- 
tion of  paying  off  the  executor's  of  a  deceased  partner  by  install- 
ments."    And,    in  conclusion,  he  held  the    contract  for   a  sale 


6o  APPENDIX. 

good,  and  that  the  purchase  price  should  be  determined  by  an 
accounting. 

In  Dinham  vs.  Bradford,  5  Chan.  App.  Cas.,  519,  it  is  held  in 
efifect  that  the  articles  of  co-partnership  might  provide  that  the 
purchase  price  of  a  deceased  partner's  interest  in  the  business 
should  be  fixed  by  three  disinterested  parties.  In  Quinlivan  vs. 
English,  44  Mo.,  46,  the  value  of  the  interest  of  a  deceased  part- 
ner was  to  be  fixed  by  an  appraisement  made  after  his  death, 
and,  in  case  of  a  dispute  as  to  the  valuation  of  the  stock,  the 
matter  was  to  be  submitted  to  three  arbitrators.  The  Court  held 
such  an  agreement  valid  and  binding.  Indeed,  it  ihay  be  sug- 
gested that  the  authorities  are  practically  unanimous  that  any 
question  of  indefiniteness  or  uncertainty  as  to  the  amount  of  the 
purchase  price,  or  the  manner  or  mode  in  which  such  price  is  to 
be  arrived  at,  in  no  way  affects  the  right  of  the  surviving  partners 
under  the  partnership  contract  to  buy.  And  it  is  held  in  many 
cases  that  such  conditions  only  result  in  casting  the  burden  upon 
the  trial  court  to  take  an  accounting  and  fix  the  price.  We  con- 
clude that  the  contract  is  valid  and  binding  in  all  respects  ;  that 
the  amount  of  the  purchase  price  for  the  deceased  partner's  in- 
terest in  the  business  was  fixed  by  the  articles  with  such  suflS- 
cient  certaint}'"  as  to  deny  the  Court  the  right  to  hold  a  general 
accounting.  And,  in  the  absence  of  a  showing  of  fraud,  to  some 
extent  at  least,  in  the  making  of  the  inventory  and  appraisement 
which  lormed  the  basic  element  in  fixing  the  purchase  price,  the 
transaction  should  be  upheld. 

While  this  litigation,  judging  by  the  size  of  the  transcript  and 
briefs  before  us,  has  now  assumed  somewhat  mammoth  propor- 
tions, there  was  a  time  in  its  early  history  when  but  a  single 
matter  was  involved.  And  that  matter  arose  upon  the  conten- 
tion of  the  administrator  that  the  good- will  of  the  business  was 
not  included  in  the  inventor}^  and  appraisement  of  the  property 
of  the  deceased  returned  by  the  executor  to  the  Probate  Court. 
Owing  to  the  views  we  entertain  as  to  the  validity  of  the  con- 
tract, this  contention  may  be  disposed  of  in  a  few  words.  The 
contract  of  partnership  provided  :  "  The  surviving  partners  and 
their  successors  shall  also  have  the  right  and  privilege  of  con- 
tinuing the  said  business  under  the  said  designation  and  name 
of  Newman  &  Levinson."     We   have   no  doubt   that  the  good- 


\^The  Final  Decision,  Nov.  5,  i8g6.'\  61 

will  of  the  business  passed  to  the  surviving  partners  under  this 
provision  of  the  contract,  and  in  no  sense  formed  an  asset  of  the 
estate.  Much  could  be  said  upon  this  question  showing  the  in- 
stability of  appellant's  claims  in  this  regard,  but  we  deem  it 
unnecessary. 

The  order  appealed  from  is  affirmed. 

Garoutte,  J. 
We  concur: 

McFarland,  J., 
Van  Fleet,  J. 

CONCURRING   OPINION. 

We  concur  in  the  judgment.  We  do  not  think  we  can  say 
over  the  implied  finding  of  the  trial  Court  that  the  execution  of 
the  partnership  articles  was  procured  by  fraud,  or  by  the  use  of 
undue  influence.  The  question  is  argued  on  the  assumption  that 
the  Newmans  were  contracting  with  the  expectation  that  they 
would  be  the  survivors.  We  do  not  think  we  can  assume  that. 
Such  a  consideration  was  proper  to  be  urged  upon  the  trial  Court 
under  the  charge  of  fraud,  and  evidence  could  have  been  ad- 
dressed to  that  point.  It  does  not  appear  that  any  such  question 
was  tried.  It  does  appear  thai  Levinson  was  then  ill,  but  we  do 
not  find  that  the  illness  was  deemed  mortal.  He  lived  more  than 
one  year  thereafter,  and  during  a  portion  of  that  time  was  able  to 
attend  to  business. 

But  the  advantages  of  the  agreement  are  not  all  on  one  side. 
In  case  of  a  dissolution  by  death  it  would  have  been  the  privilege 
of  the  surviving  partners,  in  case  there  was  no  provision  made 
for  such  an  event,  to  have  stopped  the  business  and  to  have  gone 
into  liquidation.  In  such  case  the  goods  would  have  been  sold 
at  a  sacrifice,  and  the  estate  would  have  realized  nothing  for  the 
good-will. 

As  to  the  construction  and  effect  of  the  twelfth  article  of  the 
partnership  agreement  between  the  defendants  and  their  deceased 
partner,  our  views  do  not  coincide  with  those  expressed  in  the 
preceding  opinion.  The  meaning  of  that  article  is  of  course  the 
main  question  in  the  case,  and  for  two  years  after  the  death  of 
I^evinson  it  was  the  only  question — the  attack  upon  the  validity  of 
the  agreement  based  upon  the  alleged  mental  incapacity  of  Levin- 


62  APPENDIX. 

son,  and  the  charge  of  undue  influence  by  his  surviving  partners, 
being  an  evident  after-thought.  So  much  stress,  however,  has 
been  laid  upon  this  matter  in  the  argument,  and  it  forms  so  large 
and  so  essential  a  part  of  the  charge  of  fraud,  to  the  elaboration 
of  v^^hich  the  voluminous  brief  of  appellants  is  mainly  devoted, 
that  it  cannot  be  ignored.  The  fact  that  the  validity  of  the  part- 
nership agreement  is  affirmed  by  the  implied  finding  of  the  Su- 
perior Court,  and  that  there  is  substantial  evidence  to  support 
such  finding,  is  sufficient,  as  shown  in  the  preceding  opinion,  to 
put  an  end  to  the  question  so  far  as  it  is  material  to  the  decision 
of  this  appeal,  but  with  respect  to  the  matter  so  vehemently  and 
intemperatel}^  argued  upon  the  part  of  appellant,  and  especially 
with  reference  to  the  torrent  of  vituperation  poured  out  upon  Mr. 
Justice  Harrison,  it  is  important  to  note  that  never  upon  any  oc- 
casion during  the  time  that  he  was  acting  as  attorney  for  execu- 
tor Raveley  was  there  the  slightest  hint  or  suggestion  to  the  ef- 
fect that  the  partnership  articles  were  in  any  respect  invalid,  or 
that  Levinson  at  the  time  he  signed  them  was  mentally  incapaci- 
tated or  subjected  to  the  slightest  degree  of  undue  influence.  On 
the  contrary,  the  whole  dispute  from  the  beginning,  and  for  two 
years  after  the  death  of  Levinson,  was  as  to  the  construction  of 
the  agreement,  and,  in  particular,  whether,  according  to  its  terms, 
the  estate  of  Levinson  was  entitled  to  separate  and  additional 
compensation  for  his  interest  in  the  good-will  of  the  business  of 
the  firm.  The  mother  and  sisters  of  Levinson — all  adults — and 
Mr.  Philbrook,  their  attorney,  assumed  as  a  fact  unquestioned 
that  the  contract  was  entirely  valid,  and  that  the  rights  of  all 
parties  were  dependent  upon  its  proper  construction.  Under 
these  circumstances  it  would  have  been  strange  indeed  if  the  at- 
torneys for  the  executor  had  not  taken  the  same  view.  Natu- 
rally and  inevitably  they  confined  their  attention  to  the  meaning 
of  the  contract,  and  to  the  steps  necessary  to  be  taken  in  carrying 
it  out  according  to  the  intention  of  the  parties.  They  (the  firm 
of  Jarboe  and  Harrison)  had  been  .employed  by  the  executor 
within  a  few  days  after  the  death  of  Levinson,  and  Mr.  Philbrook 
shortly  afterwards  was  employed  by  the  mother  and  sisters  of  the 
decedent  to  look  especially  after  their  interests.  From  the  very 
first  there  was  an  open  difference  of  opinion  between  these  attor- 
neys as  to  the  meaning  of  the  partnership  agreement  with  respect 


\^The  Final  Decision,  Nov.  5,   i8g6.'\  63 

to  the  right  of  Levinson's  estate  to  be  paid  an  additional  com- 
pensation for  his  interest  in  the  good-will  of  the  business,  over 
and  above  the  appraised  value  of  his  interest  in  the  stock  of 
^oods, .fixtures,  accounts  and  other  tangible  assets  of  the  firm. 
Jarboe  and  Harrison  took  the  position,  which  they  always  main- 
tained openly  and  unequivocally,  that  according  to  the  proper 
construction  of  the  agreement  the  surviving  partners  took  the 
whole  interest  of  the  deceased  partner,  including  the  right  to  con- 
tinue the  business  under  the  name  of  Newman  «&  Levinson, 
upon  payment  of  the  appraised  value  of  his  share  of  the  assets,  to 
be  ascertained  by  an  inventory  and  appraisement  according  to  the 
annual  custom  of  the  house,  and  that  no  separate  allowance  for 
good-will  was  contemplated  or  provided  for.  Mr.  Philbrook  took 
the  opposite  view,  which  he  likewise  consistently  maintained. 
There  was  no  other  difference  between  the  parties  or  their  legal 
advisors,  and  when  the  inventory  and  appraisement  were  made 
their  fairness  and  correctness,  so  far  as  they  went,  were  not  dis- 
puted, the  only  objection  on  the  part  of  Mr.  Philbrook  and  his 
clients  being  that  it  made  no  allowance  for  the  value  of  the  good- 
will. No  charge  of  fraud  or  undervaluation  of  assets,  or  over- 
statement of  liabilities  in  the  appraisement,  was  then  or  ever  dur- 
ing Judge  Harrison's  connection  with  the  case  made  or  suggested. 
The  dispute  was  wholly  upon  a  question  of  law,  i.  e.^  the  con- 
struction of  a  contract,  and  as  to  this  there  was,  as  above  stated, 
no  equivocation  or  concealment  whatever. 

Mr.  Philbrook.  however,  seems  to  think  that  Jarboe  and  Har- 
rison were  guilty  of  a  species  of  disloyalty  to  his  clients  because 
notwithstanding  their  opinion  to  the  contrary,  they  did  not  sus- 
tain him  in  his  position,  and  advise  their  cix^nt  accordingly.  But 
this  contention  is  utterly  unreasonable.  They  were  attorneys 
for  the  executor,  who  was  trustee  not  only  of  the  legatees,  but 
also  of  the  creditors  of  his  testator,  and  it  was  their  imperative 
duty  to  advise  him  to  proceed  according  to  the  true  construction 
of  the  agreement  as  they  interpreted  it,  and  especially  to  see  that 
he  wasted  no  portion  of  the  estate  in  fruitless  litigation.  In 
view  of  the  difference  of  opinion  between  them  and  the  attorney 
for  the  legatees,  it  was  natural  that  they  should  take  time  to 
consider  before  deciding  a  question  so  delicate  and  so  important, 
and  equally  natural  that  they  should  wish  to  submit  the  decision 


64  APPENDIX. 

of  the  matter  to  the  Probate  Court.  But  when  that  Court,  in 
the  proceedings  instituted  by  the  Newmans  to  compel  the  execu- 
tor to  transfer  to  them  the  interest  of  the  deceased  partner, 
declined  to  give  a  construction  to  the  agreement  upon  the  ground 
that  it  had  no  jurisdiction  to  decide  upon  the  matter,  the  respon- 
sibility was  thrown  upon  the  attorneys  for  the  executor  to  decide 
whether  he  should  accept  or  reject  the  tender  which  the  New- 
mans had  made  of  the  appraised  value  of  lycvinson's  interest. 
Being  obliged  to  take  the  responsibility  of  deciding,  they  natur- 
ally decided  according  to  their  own  construction  of  the  contract, 
and  not  according  to  Mr.  Philbrook's.  Differing,  as  we  do, 
from  the  views  which  they  entertained,  we  should  never  have 
thought  of  imputing  a  bad  motive  for  their  decision  if,  for  no 
other,  yet  for  the  simple  reason  that,  if  wrong,  it  could  harm 
no  one  but  themselves  and  their  client.  A  large  part  of  Mr. 
Philbrook's  tirade  is  based  upon  the  assumption  that  Jarboe  and 
Harrison  did  not  really  entertain  the  opinion  which  they 
expressed,  and  that  they  only  advised  the  executor  to  the  course 
that  he  took  because  they  were  acting  in  collusion  with,  and  in 
the  interest  of,  the  Newmans.  The  absurdity  of  this  position  is 
manifest  from  the  fact  that  any  settlement  between  the  executor 
and  the  Newmans,  not  made  in  accordance  with  the  true  con- 
struction of  the  contract,  could  only  involve  the  parties  to  such 
settlement  in  loss  and  difficulty,  and  could  not  possibly  foreclose 
or  prejudice  the  rights  of  the  residuary  legatees. 

By  accepting  the  money  and  notes  tendered  by  the  Newmans 
in  full  payment  for  the  interest  of  his  testator  in  the  firm,  the 
executor  placed  himself  in  the  position  of  unequivocally  refus- 
ing to  proceed  against  the  surviving  partners  on  accounf  of  the 
value  of  the  good- will,  and  thereby  gave  to  the  residuary  lega- 
tees the  right  to  ask,  as  they  ultimately  did,  for  his  discharge 
upon  the  ground  that  he  was  neglecting  the  duties  of  his  trust. 
As  to  the  executor,  this  was  the  sole  effect  of  erroneous  advice 
on  this  point.  As  to  the  Newmans,  the  efiect  of  a  settlement 
unauthorized  by  the  Probate  Court,  and  unwarranted  by  the 
terms  of  the  partnership  agreement,  would  simply  be  to  expose 
them  to  an  action  for  an  accounting — this  very  action — in  which 
the  most  rigorous  and  burdensome  rules  for  computing  the  inter- 
est of  Levinson  in  the  assets  of  the  firm  and  profits  of  the  busi- 


\^The  Final  Decisioii,  Nov.  5,   i8g6.'\  65 

ness  would  be  enforcible  against  them  at  the  option  of  the 
administrator  with  the  will  annexed.  To  suppose,  as  the  argu- 
ment does,  that  the  attorneys  for  the  executor  were  deliberately- 
giving  him  advice  which  they  knew  to  be  bad,  in  order  to  serve 
the  interest  of  the  Newmans  at  the  expense  of  the  legatees, 
when  the  only  effect  of  the  course  advised  would  be  to  expose 
the  executor  to  censure  and  punishment,  and  the  Newmans  to 
certain  loss,  is  rather  too  heav}^  a  draft  on  human  credulity. 

But  it  is  not  alone  the  acceptance  of  the  tender  made  by  the 
surviving  partners,  and  the  advice  upon  which  the  executor 
acted,  that  furnish  grounds  for  Mr.  Philbrook's  suspicions.  It 
is  the  secrecy  of  the  transaction,  and  the  fact  that  the  receipts  or 
acknowledgements  given  by  the  executor  were  in  the  hand- 
writing of,  and  were  witnessed  by,  a  gentleman  who  at  the  date 
of  the  settlement  had  been  nominated  by  a  leading  political 
party  of  the  State  for  a  seat  on  this  bench,  that  excites  his  deep- 
est indignation.  He  can  see  in  these  circumstances  nothing  but 
a  deliberate  attempt  to  defraud  his  clients  and  to  corrupt  this 
Court. 

As  to  the  secrecy  of  the  transaction,  the  simple  truth  is  that 
Mr.  Philbrook  and  his  clients  were  not  called  in  to  witness  the 
payment  of  the  money  or  the  delivery  of  the  receipts,  and  there 
was  no  reason  why  they  should  be  present.  It  was  not  necessary 
that  they  should  be  there  to  protest  in  order  not  to  be  bound  by 
the  settlement.  Their  rights  were  not  being  concluded,  or  in 
any  wise  prejudiced.  The  fact  that  the  notes  and  money  were 
in  the  hands  of  the  executor  was  nothing  to  them.  The  time 
for  presentation  of  claims  of  creditors  had  not  elapsed,  the  time 
for  filing  a  first  annual  account  had  not  arrived.  No  part  of  the 
money  in  the  hands  of  the  executor  could  then  or  for  months 
thereafter  be  applied  in  payment  of  claims  or  legacies  ;  in  short, 
neither  the  executor  nor  the  Newmans  could  gain  the  slightest 
advantage,  nor  the  legatees  suffer  the  slightest  loss,  by  conceal- 
ment of  the  fact  that  the  settlement  had  been  made.  And 
accordingly  we  find  that,  upon  the  very  first  occasion  calling  for 
a  disclosure  of  the  fact  and  the  terms  of  the  settlement,  such  dis- 
closure was  fully  and  unreservedly  made  in  the  most  direct  and 
certain  terms.  The  settlement  was  made  in  September,  and  in 
November  following,  in  response  to  a  demand  for  an  amended 


66  APPENDIX. 

inventory  of  Levinson's  estate,  which  should  include  the  item  of 
good-will  of  the  business,  the  surviving  partners  served  upon 
Mr.  Philbrook  their  written  answer,  which  contained,  among 
other  things,  the  following  passage  : 

''And  deny  that  S3.id  Willisim  ].  Newman,  or  said  Benjamin 
Newman,  has  not  fully  accounted  to  said  executor  of  said  estate 
for  any  and  all  moneys,  interests  and  claims  due  to  said  estate 
from  said  William  J.  Newman  or  said  Benjamin  Newman,  or 
either  of  them,  and  aver,  on  the  co?itrary,  that  they  have  fully 
accounted  for  any  and  all  clahns,  payments  and  stems  due  said 
estate,  in  the  manner  set  forth  iyi  said  memorandum  in  writing, 
and  in  this  behalf  said  William  J.  Newman  and  said  Benjamin 
Newman  aver  that  after  the  appointment  of  said  S.  W.  Raveley 
as  the  executor  of  the  last  will  and  testament  of  said  John  Lev- 
inson,  deceased,  said  executor  requested  them — said  William  J. 
Newman  and  Benjamin  Newman — to  account  to  him  for  the  inter- 
est of  said  decedent  i7i  said  co-partnership,  a?id  said  William  f. 
Newman  and  said  Benjam.in  Newman  did  thereupon  account  to 
him  and  exhibit  to  him,  said  executor,  all  the  books  and  assets 
of  every  kind  belonging  to  said  co-partnership,  and  it  appeared 
therefrom  that  the  entire  interest  of  said  decedent  in  the  assets 
of  said  co-partnership  amounted  to  the  sum  of  $20,790.80,  and 
thereupon  said  William  J.  Newman  ajid  said  Benjamin  Newman 
elected  and  decided,  under  and  in  accordance  with  the  provisions  of 
said  memorandum  in  writiyig,  to  purchase  and  pay  for  the  interest 
of  said  decedent  in  said  co-partnership,  and  thereupon  executed  to 
said  S.  IV.  Raveley,  as  executor  aforesaid,  twelve  certain  promissory 
notes,  bearing  date  the  26th  day  of  February,  i8go,  payable  at 
monthly  intervals  thereafter,  each  for  the  sum  of  $i,732.^Yyz  {said 
promissory  notes  aggregating  the  sum  of  $20,7^0.80),  in  full  pay - 
ment  and  discharge  of  the  interest  of  said  decede?it  i?i  said  co-part- 
nership business,  as  the  same  had  been  ascei'tained  and  determi7ied 
by  the  inventory  and  appraisement  thereof,  made  i?i  accorda7tce  with 
the  provisions  of  said  memora7idum  in  writing. ' ' 

Mr.  Philbrook  knows  the  meaning  of  a  plain  stateruent  in 
plain  English,  and,  therefore,  it  is  not  to  be  doubted  that  from 
and  after  the  19th  day  of  November,  1890,  he  and  his  clients 
knew  that  executor  Raveley  had  accepted  from  the  surviving 
partners  their  notes  for  $20,790.80,  in  full  payment  for  his  testa- 


\The  Final  Decision,  Nov.  5,  i8g6^^  67 

tor's  interest  in  the  co-partnership.  He  knew  then  and  ever 
afterwards  that  Raveley,  acting  under  the  advice  of  his  attorneys, 
would  refuse  to  prosecute  an  action  against  the  Newmans  for  a 
further  accounting,  and  that  the  legatees,  if  they  desired  to  have 
such  an  action  instituted,  must  procure  the  removal  of  the  execu- 
tor, and  the  appointment  of  an  administrator  with  the  will 
annexed  who  would  be  guided  by  his  advice.  This  is  the  course 
which  was  taken  just  one  year  after  Mr.  Philbrook  was  advised 
of  the  settlement,  and,  since  he  allowed  a  whole  year  to  elapse 
after  receiving  the  information  before  taking  the  only  action  that 
the  settlement  called  for,  he  can  hardly  complain  that  the  fact 
was  not  disclosed  two  months  sooner  than  it  was.  As  to  the  fact 
that  Mr.  Harrison,  after  his  nomination  for  Justice  of  the  Supreme 
Court,  continued  to  advise  executor  Raveley  in  a  matter  in 
which  he  had  been  employed  long  before  his  nomination,  and  the 
further  fact  that  he  drew  up  and  witnessed  the  papers  which 
passed  upon  the  settlement,  it  seems  scarcely  credible  that  a  nor- 
mal mind  could  regard  them  as  evidence  of  fraud,  or  as  an 
attempt  to  corruptly  influence  the  decision  of  this  Court.  But  it 
is  out  of  these  simple  circumstances  that  Mr.  Philbrook  has  con- 
structed his  elaborate  theory  of  fraud  and  corruption. 

The  truth  is  there  is  not  only  no  foundation  for  the  argument 
upon  this  point,  but  the  fact  which  it  seeks  to  establish  is  totally 
irrelevant.  The  motives  which  may  have  prompted  Raveley's 
attorneys  in  giving  their  advice,  the  advice  itself  and  the  action 
taken  in  consequence  of  it  have  not  in  the  slightest  degree 
affected  the  rights  of  Levinson's  mother  and  sisters.  If  the  ad- 
vice was  correct,  as  held  in  the  preceding  opinion,  there  never 
was  any  ground  of  complaint.  If  it  was  incorrect  the  settlement 
did  not  bind  the  estate,  and  the  Newmans  remained  accountable 
for  the  true  value  of  Levinson's  interest  at  the  time  of  his  death, 
or  at  the  option  of  his  representatives  for  the  profits  of  the  busi- 
ness which  they  continued  to  carry  on. 

If  these  views  are  correct,  and  v/e  have  no  doubt  that  they  are, 
the  whole  question  of  fraud  and  corruption  so  gratuitously  im- 
ported into  the  case  may  be  dismissed  from  further  consideration, 
and  attention  confined  to  the  questions  upon  which  the  decision 
of  the  appeal  necessarily  depends. 

The  agreement  between  the  Newmans  and  Levinson,  which  by 


68  app'E:ndix. 

the  preceding  opinion  is  held  to  be  a  contract  of  sale,  properly 
bears  the  construction  put  upon  it.  It  was  within  the  terms  of 
the  agreement  and  the  contemplation  of  the  parties  that  in  some 
way  a  purchase  by  the  survivors  should  be  made.  If  the  con- 
tract were  in  other  respects  free  from  objection,  the  case  would  be 
the  not  unusual  one  where  the  partners  provide  for  the  purchase 
by  the  survivors  of  the  interest  of  a  deceased  member  of  the 
firm.  Upon  the  exercise  by  the  survivors  of  their  right  the  sale 
would  be  complete,  and  the  surviving  partners  would  become 
debtors  to  the  estate  of  the  deceased  partner,  with  the  duty  of 
accounting  with  his  representative  for  the  value  of  the  deceased 
partner's  interest. 

Cases  are  not  rare  where  contracts  of  this  nature  have  been 
entered  into  and  enforced.  But,  when  upheld,  it  is  because  they 
are  certain  and  specific  in  their  terms,  and  unobjectionable  upon 
any  equitable  consideration.  The  plan  adopted  by  these  part- 
ners for  arriving  at  the  value  of  their  annual  profits  by  deducting 
from  their  assets  the  amount  of  their  liabilities  was  feasible  and 
satisfactory  while  all  the  partners  were  living,  but  upon  the 
death  of  Levinson  not  the  profits  merely  but  the  whole  of  his 
interest  was  in  some  manner  to  be  determined  and  withdrawn 
from  the  assets  of  the  firm.  While  all  of  the  partners  were  alive 
it  did  not  matter  how  the  assets  were  valued  or  the  liabilities 
estimated,  for  what  they  did  not  take  out  as  profits  they  retained 
in  the  assets  of  the  firm.  But,  when  one  died,  it  became  highly 
important  that  his  share,  then  to  be  wholly  withdrawn,  should 
be  fairly  and  fully  valued.  The  apportionment  of  profits  in- 
volved no  transfer  of  title  to  the  remaining  capital ;  but  such  a 
transfer  was  necessarily  involved  in  the  transaction  contemplated 
upon  the  death  of  a  partner.  Frequently,  says  Lindley  (Part- 
nership, §  429),  in  order  to  prevent  the  ruin  consequent  on  the 
sale  when  a  partnership  happens  to  be  dissolved  by  the  death  of 
a  partner,  it  is  provided  that  the  share  of  the  deceased  may  be 
taken  by  the  survivors  at  the  value  shown  by  the  last  settlement 
agreed  to  by  him,  with  the  addition  of  any  subsequent  profit. 
But  here  a  new  valuation  was  to  be  made,  and  either  no  method 
is  provided  in  the  contract  for  arriving  at  that  valuation,  or,  if 
a  method  be  found,  it  can  only  be  the  method  actually  adopted — 
the  valuation  being  made  by  the  surviving  partners  themselves. 


\TJie  Final  Decision,  Nov.  5,  /c5'p<5.]  69 

But,  in  the  first  instance,  if  no  mode  is  prescribed,  there  is  the 
absence  of  an  essential  element  of  a  contract  of  sale  which  equity 
cannot  supply — the  price  or  the  manner  of  determining  the  price. 
If  the  second,  and  the  mode  adopted  be  the  one  contemplated  by 
the  contract,  then  if  the  contract  be  valid  it  must  result  in  hold- 
ing that  the  surviving  partners,  trustees  of  the  deceased  partner's 
share,  may  not  only  purchase  that  share,  but  may  fix  the  value 
which  they  will  pay  for  it. 

But,  if  we  understand  respondents,  they  do  not  contend,  nor 
could  they  successfully,  for  the  latter  proposition,  but  they  claim 
that  by  their  agreement  with  the  executor  such  value  was  legally 
ascertained,  and  herein  it  is  claimed  that  the  executor  in  efi'ecting 
that  settlement  was  merely  carrying  into  effect  the  contract  of 
his  testator,  as  expressed  in  the  articles.  But  something  more 
was  necessary.  The  testator's  contract  did  not  determine  the 
amount  of  the  consideration  to  be  rendered  by  the  survivor  for 
his  interest,  and  the  exercise  of  a  further  act  of  discretion,  judg- 
ment and  assent  was  necessary  to  ascertain  the  amount.  Morri- 
son vs.  Rossignol,  5  Cal.,  64;  Breckenridge  vs.  Crocker,  78  Cal., 
529;  Vickers  vs.  Vickers,  4  Eq.  Cases,  529.  It  is  said  that  these 
were  cases  where  specific  performance  was  sought,  while  in  this 
instance  the  contract  has  been  executed.  This  is  true,  but  we  are 
now  dealing  with  the  question  of  power  in  the  executor,  and 
these  cases  illustrate  the  proposition  that  in  making  the  adjust- 
ment with  defendants  the  executor  necessarily  supplied  the  miss- 
ing terms  of  his  testatator's  contract  b}'  the  exercise  of  his  own 
will  and  discretion. 

Had  the  executor  that  authority  ?  Defendants  claim  it  for  him 
by  virtue  of  his  general  powers,  and  independently  of  the  articles. 
At  the  common  law  such  power  was  unquestionably  his,  but  at 
common  law  the  executor  or  administrator  held  the  title  of  the 
personal  property  of  the  decedent,  while  with  us  title  to  person- 
alty as  well  as  to  realty  vests  in  the  heirs,  subject  only  to  the 
right  of  the  executor  to  take  possession  of  it  for  specific  purposes. 
At  common  law,  then,  the  representative  could  sell  personal 
property  without  restraint,  so  long  as  his  acts  were  not  fraudu- 
lent, but  here  his  power  to  sell  is  dependent  upon  the  assent  of 
the  Superior  Court.     Code  of  Civil  Procedure,  §  §  1,517,    1,561; 


70  APPENDIX. 

Wickersham  vs.  Johnson,    104    Cal.,   407;    2   Woerner's   Law   of 
Administration,  §  331. 

The  provisions  of  the  articles  for  the  transfer  of  Levinson's  in- 
terest were  incomplete,  in  that  no  price  was  fixed,  and  that  no 
disinterested  person  was  named  who  should  fix  the  price.  The 
executor,  by  assenting  to  the  valuation  put  by  the  Newmans  on 
the  partnership  interest,  assumed  to  supply  the  omission  of  the 
contract,  and  to  fix  a  sum  at  which  they  might  take  the  interest. 
It  is  not  claimed  that  the  executor  derived  authority  to  make  the 
sale  from  the  will  of  deceased.  As  the  articles  fall  short  of  con- 
ferring that  power,  he  could  necessarily  derive  it  only  from  the 
Court  in  the  manner  prescribed  by  statute.  But  under  the  staf 
ute  it  could  be  sold  only  "in  the  same  manner  as  other  personal 
property,"  namely,  by  authority  and  consent  of  the  Superior 
Court. 

Had  the  contract  of  partnership  determined  the  price  or  pre- 
scribed some  legal  mode  of  ascertaining  the  price,  the  cases  cited 
in  the  preceding  opinion  would  be  directly  in  point.  Then  the 
executor  would  have  needed  only  to  abide  by  the  terms  of  the 
contract.  Janin  vs.  Brown,  59  Cal.,  37.  The  wisdom  or  policy 
of  the  contract  would  have  been  none  of  his  concern.  But  under 
the  facts  the  necessity  for  the  supervisory  power  of  the  Court  tcv 
order  a  sale,  and  for  the  caution  of  the  statute  that  before  con- 
firming the  sale  of  the  partnership  interest  the  Court  or  judge 
must  carefully  inquire  into  the  condition  of  the  partnership  af 
fairs,  and  must  examine  the  surviving  partner  (C.  C.  P.  §  1,524) 
was  as  manifest  as  if  there  had  been  no  contract. 

But  it  is  further  said  that  the  inventory  and  appraisement  were 
made  in  the  manner  usual  during  Levinson's  life,  and  that  this 
established  a  custom  by  which  the  articles  are  to  be  interpreted. 
But  a  customary  mode  of  valuing  assets,  with  a  view  of  deter- 
mining and  withdrawing  profits,  is  radically  different  from  the 
requisites  of  a  fair  and  reasonable  estimate  of  all  assets  with  a 
view  to  segregating  the  share  of  a  deceased  partner  for  purchase 
by  the  others. 

We  think  the  conclusion  inevitable  that  the  executor  exceeded 
his  authority  in  the  settlement  with  defendants;  that  he  did  not,  as 
is  admitted,  follow  the  statutory  mode  in  making  the  settlement^ 
and  that  there  was  no  power  for  him  to  do  so  ur.der  the  ai ticks. 


\Tlie  Final  Decision,  Nov.  5,  i8g6  ]  71 

Leaving  aside  for  the  moment  the  question  whether  or  not  the 
good-will  was  included  in  the  settlement,  we  think  the  evidence 
overwhelmingly  establishes,  as  the  trial  Court  held,  that  the  sum 
found  by  the  Newmans  under  the  inventory  and  appraisement  to 
be  the  value  of  Levinson's  interest,  and  by  the  Newmans  paid 
into  the  estate  of  Levinson,  and  received  by  the  executor  thereof, 
was  not  only  a  just  amount,  but  indeed  a  ver\"  liberal  amount. 
The  evidence  seems  to  be  without  conflict,  and  at  least  is  strongly 
in  favor  of  the  respondents,  that  the  appraised  value  put  by  the 
Newmans  upon  the  interest  of  their  deceased  partner  was  gireater 
than  its  actual  worth.  It  was  paid  over  and  received,  with 
knowledge  then  or  soon  afterward  acquired  of  the  claim  of  the 
Newmans  that  by  the  payment  they  took  to  themselves  the 
deceased's  interest  and  title  in  the  assets  of  the  co-partnership, 
and  acquired  the  right  to  continue  to  conduct  the  business  under 
the  firm  name.  Thereafter  the  heirs,  who  were  all  of  age,  and 
who  were  represented  throughout  all  court  proceedings  by  their 
attorney,  petitioned  for,  and,  despite  the  protests  of  the  executor, 
obtained,  a  decree  of  partial  distribution,  distributing  to  them 
as  of  the  property  of  the  estate  a  portion  of  the  moneys  thus 
obtained  from  the  Newmans.  At  the  time  when  this  decree  was 
sought  and  obtained  the  source  from  which  the  moneys  came, 
and  the  circumstances  under  which  it  had  been  paid  over  to  the 
estate,  and  the  claims  of  the  Newmans  in  regard  thereto,  were 
well  known  to  them.  Their  opposing  claim  during  all  of  this 
time  seems  to  have  been  solely  the  one  that  the  good-will  had 
not  passed  to  the  Newmans,  and  was  still  personal  property,  and 
a  part  of  the  assets  of  Levinson's  estate. 

Having  under  these  circumstances  demanded  and  received  the 
moneys  so  paid  by  the  Newmans,  the  price  having  been  fair  and 
the  transaction  without  fraud,  we  are  of  opinion  that  they  are 
estopped  from  questioning  the  settlement  while  retaining  the 
benefits  of  it,  and  from  denying  that  there  passed  to  the  New- 
mans whatever  would  have  passed  under  the  terms  of  the  con- 
tract had  it  been  free  from  the  defect  above  discussed. 

What,  then,  would  have  passed,  and  what  are  appellants 
estopped  from  denying  did  pass  ?  Unquestionably  there  passed 
to  the  Newmans  Levinson's  interest  in  the  assets,  as  shown  by 
the  inventory  and  appraisement  upon  which  the  settlement  was 


72  APPENDIX. 

based.  But  the  articles  provide  further  that  the  survivors  shall 
have  the  right  to  continue  the  business  under  the  firm  name  of 
Newman  &  Levinson.  This  clause  may  be  construed  either  as 
dependent  or  independent  of  the  covenant  to  purchase.  If  con- 
strued as  dependent,  then  the  contract  was  that  upon  purchasing 
under  the  inventory  and  appraisement  the  survivors  would 
acquire  the  right  to  continue  the  business  under  the  firm  name. 
In  this  view  appellants  would  also  be  estopped  from  denying 
that  there  passed  to  defendants  the  right  to  conduct  the  business 
under  the  firm  name.  If,  however,  this  clause  is  to  be  construed 
as  independent,  it  is  of  itself  valid  and  operative,  and  conferred 
this  right  upon  defendants  regardless  of  other  considerations.  In 
either  case  it  must  follow  that  the  right  to  conduct  the  business 
under  the  firm  name  passed  to  the  defendants. 

There  thus  comes  under  consideration  the  question  which 
originally  and  for  a  long  time  was  the  sole  point  of  difference 
between  the  parties,  the  question  of  the  disposition  of  the  good 
will;  for  it  appears  that,  while  the  heirs  from  a  very  early  date 
insisted  that  the  good-will  still  remained  a  part  of  the  property 
of  the  estate,  and  should  be  inventoried  and  appraised  as  such, 
they  made  no  objection  to  the  valuation  put  upon  the  deceased 
partner's  interest,  nor  to  the  sale  of  that  interest,  saving  that 
therein  the  good-will  had  not  been  valued.  There  was  no  con- 
cealment nor  secrecy  nor  fraud  in  this.  The  heirs  were  informed 
that  the  good-will  was  not  included,  the  contention  of  the  execu- 
tor and  of  the  Newmans  under  the  advice  of  counsel  being  that 
the  good-will  under  the  circumstances,  did  not  become  a  part  of 
the  assets  of  the  estate,  but  vested  in  the  surviving  partners. 

While  some  of  the  earlier  cases  lean  to  the  doctrine  that,  upon 
the  death  of  one  partner,  the  good- will  goes  to  the  survivors,  the 
great  weight  of  later  decision  is  to  the  contrary.  Thus,  it  is 
said  by  Bates  (Partnership,  Vol.  2,  §  658):  "It  was  once  thought 
that  upon  the  death  of  a  partner  his  interest  in  the  good-will 
ceased,  and  it  survived  to  the  surviving  partner  as  his  own  prop- 
erty ;  this  was  doubted  in  Crawshay  vs.  Collins,  15  Ves.,  218, 
and  it  is  not  now  nor  anywhere  regarded  as  the  law  in  trade 
partnerships,  and  though  inseparable  from  the  business,  is  an 
appreciable  part  of  the  assets  in  which  the  estate  of  a  deceased 
partner  can  participate."     Lindley  says  :    "In  the  event  of  dis.so- 


[The  Final  Decision,  Nov.  5,  i8g6.']  J2> 

lution  by  death,  it  has  been  said  that  the  good-will  survives,  and 
there  is  a  clear  decision  to  that  efifect,  but  this  is  not  in  accord- 
ance with  modern  authorities.  They  are  wholly  opposed  to  the 
notion  that  the  value  of  the  good-will  as  such  belongs  to  the 
survivor."  Lindley,  Partnership,  Vol.  2,  §  443.  And  our  Code 
declares  (Civil  Code,  §  993):  The  good- will  of  a  business  is  prop- 
erty transferable  like  any  other. 

It  is  not  necessary  to  enter  upon  a  discussion  of  the  character 
of  this  intangible  property  known  as  good- will.  The  code  solves 
many  doubts  by  defining  it  to  be  the  "  expectation  of  continued 
public  patronage."     C.  C,  §  992. 

Now  the  Newmans  had  purchased  the  interest  of  the  estate  in 
the  assets  as  shown  by  the  inventory,  and  had  likewise  acquired, 
as  has  been  discussed,  the  right  to  continue  the  business  under 
the  firm  name.  We  are  unable  to  perceive  any  difference  between 
the  acquirement  of  a  right  to  conduct  this  business  under  a  firm 
name,  and  the  acquirement  of  the  good-will  of  the  business.  In 
other  words,  every  possible  "expectation  of  continued  public 
patronage  "  to  the  business  was  gone  when  the  right  to  conduct 
it  under  the  firm  name  was  parted  with.  If  there  were  left  any- 
thing of  value,  however  shadowy  and  unreal,  it  might  be  ground 
for  saying  that  the  good-will  yet  remained  to  the  estate,  but  the 
interest  in  the  assets,  together  with  the  interest  in  the  right  to 
conduct  the  business  under  the  firm  name,  having  passed  to  the 
Newmans,  nothing  in  the  nature  of  good-will  was  left. 

But  there  is  another  and  equally  convincing  view  which  may 
be  taken  of  these  matters.  Counsel  have  cited  some  cases  in 
which  it  is  said  that  it  is  the  duty  of  the  survivors  to  sell  the 
property,  and  the  business  as  a  going  business,  and  also  to  con- 
tinue the  business  until  this  can  be  done.  It  may  be  that  when 
a  firm  name  is  not  composed  of  the  name  of  the  partners,  but  is 
a  trade  name  only,  different  equities  may  arise,  but  we  are  sure 
in  this  case  the  Newmans  could  not  have  been  required,  in  the 
interest  of  Levinson's  estate,  to  sell  the  right  to  continue  the 
business  in  the  firm  name  nor  to  sell  the  good- will.  There  is  not 
only  the  good-will  which  belongs  to  the  firm,  but  in  a  successful 
business  each  partner  may  have  gained  a  business  standing  and 
a  reputation  which  is  of  value  to  him.  One  who  sells  the  good- 
will of  a  business   warrants   by    that  very  act  that  he  will  not 


74  APPENDIX. 

endeavor  to  draw  off  any  of  the  customers.  §  1,776,  C.  C.  If 
the  surviving  partners  can  be  required  to  do  this  they  are  practi- 
cally prohibited  from  pursuing  the  same  business  at  that  place, 
and  that  may  be  their  only  means  of  gaining  a  livelihood.  When 
a  partnership  is  dissolved  by  death  the  survivors  are  absolved 
from  all  obligations  except  to  close  out  the  partnership  affairs 
and  to  account  to  the  estate.  They  do  not  owe  a  duty  to  the 
estate  of  the  deceased  to  abstain  from  business  even  in  the  same 
line  as  that  in  which  the  partnership  was  engaged. 

We  are  forced  to  believe  in  this  case  that  the  articles  of  co- 
partnership failed  to  provide,  effectively,  for  a  transfer  of  the 
interest  of  Levinson's  estate  in  the  co-partnership  to  the  surviv- 
ing partners.  The  executor  and  his  counsel  were  of  the  opinion 
that  it  did  so  provide,  and  acted  accordingly.  Though  we  are 
convinced  that  they  were  mistaken,  we  do  not  doubt  that  the 
estate  of  Levinson  realized  much  more  from  the  property  than 
would  have  been  possible  if  the  firm  had  gone  into  liquidation, 
as  they  must  have  done  in  the  absence  of  the  agreement.  We 
think,  therefore,  that  the  agreement  which  the  parties  supposed 
they  had  made  was  to  the  material  advantage  of  all  concerned, 
and,  had  they  provided  for  a  valid  method  of  determining  the 
value  of  the  interest  of  Levinson,  it  would  have  been  just  as 
well  as  legal. 

For  the  lack  of  such  method,  however,  the  transfer  to  the 
Newmans  was  unauthorized  and  void.  The  legatees,  however, 
of  Levinson's  estate,  were  all  of  age,  and  the  estate  was  solvent. 

Knowing  all  of  the  essential  facts,  they  demanded  and  re- 
ceived the  proceeds  of  the  sale  over  the  protests  of  the  executor 
and  of  the  Newmans.  These  protests  amounted  to  the  claim 
that,  unless  the  transfer  to  the  Newmans  was  valid,  the  money 
should  be  returned  to  them.  If  the  transfer  was  regarded  as  in- 
valid, plainly  that  should  have  been  done.  The  Court  could 
not  distribute  the  money  except  upon  the  theory  that  it  properly 
belonged  to  the  estate.  The  Levinsons  solicited  and  obtained 
such  an  adjudication,  and  they  received  the  money  so  distributed. 

No  rights  were  or  could  have  been  reserved  by  the  protest, 
styled  a  stipulation,  which  was  filed  by  the  Levinsons.  The 
money  was  not  voluntarily  paid  after  the  protest  was  made,  but 
the  payment  was  forced  by  the  legatees.    The  protest  does  show, 


[The  Final  Decisio7i,  Nov.  5,  1896,1  75 

however,  that  the  legatees  knew,  or  at  least  suspected,  that  the 
executor  and  the  surviving  paftners  claimed  that  the  money  in 
the  hands  of  the  executor  was  all  that  was  coming  to  the  estate 
from  the  partnership.  It  is  stated,  after  admitting  that  the 
money  was  received  by  the  executor  '  *  on  account  of  the  inter- 
est of  said  estate  in  the  partnership  assets,"  as  follows  :  *'  But 
it  is  not  admitted  by  said  petitioners,  or  any  of  them,  that  no 
further  sum  remains  due,  or  is  to  become  due,  from  said  surviv- 
ing partners,  or  either  of  them,  or  assigns,  to  said  estate,  or  to 
said  petitioners,  or  any  of  them."  There  would  have  been  no 
purpose  in  guarding  against  the  implication  if  it  had  not  been 
believed  that  the  claim  was  that  this  was  all.  That  the  legatees 
well  knew  the  claim  made  by  the  surviving  partners  abundantly 
appears  from  the  other  evidence. 

This  was  a  ratification  of  the  sale  on  the  part  of  the  legatees 
which  can  be  avoided  only  for  fraud  discovered  afterwards,  and 
then  only  upon  a  rescission  and  a  restoration  of  all  that  they 
have  received,  or  a  showing  of  some  excuse  for  not  doing  so. 

The  action  is  to  compel  the  surviving  partners  to  account  for 
the  interest  of  Levinson  in  the  co-partnership.  But  the  moneys 
which  were  distributed  upon  the  application  of  the  legatees  were 
paid  for  the  entire  interest  of  Levinson  in  the  co-partnership. 
To  compel  an  accounting  is  to  set  aside  or  ignore  that  transac- 
tion. The  money  was  not  paid  on  account,  and  the  legatees  must 
have  known  that  no  such  sum  was  due  from  the  surviving  part- 
ners to  the  estate,  except  upon  the  theory  that  they  had  pur- 
chased the  interest  of  Levinson.  The  acceptance  of  the  sum  by 
the  executor  materially  affected  the  condition  of  the  surviving 
partners.  But  for  that  the  concern  would  most  likely  have  gone 
into  liquidation,  and  large  liabilities  for  goods  would  not  have 
been  incurred.  They  did  not  understand  that  they  were  assum- 
ing these  liabilities  and  the  risks  of  trade  for  the  benefit  of  the 
estate  of  Levinson,  but  for  themselves. 

BEATTY,  C.  J., 
HENSHAW,  J., 
TEMPLE,  J. 


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